Grogan v Mercury Paint Corp.

[*1] Grogan v Mercury Paint Corp. 2005 NY Slip Op 52234(U) [10 Misc 3d 1074(A)] Decided on December 7, 2005 Supreme Court, Kings County Vaughan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2005
Supreme Court, Kings County

Michael Grogan, et ano., Plaintiffs,

against

Mercury Paint Corporation, et ano., Defendants.



35179/02

David B. Vaughan, J.

Upon the foregoing papers in this action to recover damages for personal injuries allegedly sustained by plaintiff Michael Grogan (plaintiff), defendant Cleveland Steel Container Corp. (Cleveland) moves for summary judgment dismissing plaintiffs' complaint as against it. Defendant Mercury Paint Corporation (Mercury Paint) cross-moves for summary judgment dismissing plaintiffs' complaint as against it.

Cleveland is a manufacturer of steel pails. It manufactured a variety of sizes of pails, including five-gallon pails. Mercury Paint is a manufacturer of paint, which it distributed in containers, including five-gallon pails manufactured by Cleveland. Mercury Paint sold one of these five-gallon paint pails to the New York City Housing Authority (the NYCHA) for use at the St. Nicholas Housing Complex.

Plaintiff was employed as a painter by the NYCHA. On August 22, 2000, plaintiff, in the course of his duties, was attempting to lift the five-gallon paint pail to [*2]move it from a place of rest to his painting wagon when the pail's metal handle allegedly broke away from the pail. Consequently, plaintiff slipped and fell, injuring his back. On September 5, 2002, plaintiff and his wife, Gracelynn Grogan, brought this action against Mercury Paint and Cleveland, alleging, inter alia, claims of a manufacturing defect, a design defect, and a failure to warn.

In moving for summary judgment, Cleveland argues that plaintiff has failed to make out a legally sufficient case as against it. It is well settled, however, that " a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense'" (Sutherland v Whylie, 292 AD2d 518, 518 [2002], quoting Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see also Sterling v Town of Hempstead, 260 AD2d 628, 628 [1999]). Where a movant has failed to show the absence of triable issues of material fact on the relevant issues raised by the pleadings, the motion must be denied as a matter of law regardless of the sufficiency of the opposing papers (see Winegard v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

In support of its motion, Cleveland has submitted the affidavit of Edwin Umstead, a general manager in charge of its production plant located in Quakertown, Pennsylvania. Mr. Umstead states that he has worked in the production of Cleveland's five-gallon steel pails for the past 12 years, and that he supervises the quality control systems within the Quakertown, Pennsylvania plant. He asserts that Cleveland has manufactured over 70 million pails from this plant, and that the design of the five-gallon paint handle is the same design which Cleveland has been using for over 40 years. He further asserts that Cleveland has never had a claim where someone was injured because a handle dislodged while moving a five-gallon pail. Cleveland contends that this shows that it had no notice of the pail being defectively designed or made.

Cleveland's argument does not provide a basis upon which to grant summary judgment in its favor. Cleveland's mere allegation by its general manager that he was not aware of any injuries resulting from a dislodged pail handle does not absolve Cleveland of liability. It is well established that notice of an alleged defect is not an element of a strict products liability cause of action (see Sulinski v Ardco, Inc., 298 AD2d 992, 992 [2002]). "A manufacturer is held liable regardless of [its] lack of actual knowledge of the condition of the product because [it] is in the superior position to discover any design defects and alter the design before making the product available to the public" (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983]; see also Caprara v Chrysler Corp., 52 NY2d 114, 123-124 [1981]). Moreover, contrary to Cleveland's contention regarding the non-occurrence of any other similar incidents, plaintiff has submitted proof of an allegation of a similar incident which occurred on August 4, 2000 (see Matthews v Mercury Paint Corp., Sup Ct, Kings County, Sept. 16, 2005, Rivera, J., Index No. 35180/02).

Cleveland further argues that there is no evidence of a manufacturing defect in the [*3]pail. In making this argument, it relies upon Mr. Umstead's affidavit, wherein Mr. Umstead describes the process along the assembly line in the Quakertown, Pennsylvania plant. He states that at least one employee watches the machine's welding of the ears to the pail and, if it is improper, the employee will pull the pail off the line and stop the machine. He further states that the welding machine itself is designed to automatically shut off if it senses a weld that does not meet the pressure setting of an armature that tests each weld. Mr. Umstead asserts that at the handle insertion portion of the assembly line, another employee watches to see that the machine is operating properly in that the handles are correctly inserted into the ears. He further asserts that the welding machine is also designed to automatically stop if the alignment of the wire feeding process is misaligned, and that the employee operating this machine would remove any pail that did not look satisfactory in its handle alignment. In addition, Mr. Umstead states that after the handle is installed, another employee picks up the pails, inspects them, and stacks them as they move along a conveyor to the packing area, where they are, again, picked up, further visually inspected, and wrapped in cardboard and plastic.

While Mr. Umstead's affidavit is relevant on the issue of the quality control procedures in place at the Quakertown, Pennsylvania plant, it is not dispositive of the issue of whether there was a defect in the subject pail. A manufacturer of a container must subject its product to reasonable inspection (see Smith v Peerless Glass Co., 259 NY 292, 295-296 [1932]). Mr. Umstead's assertions regarding the quality control and inspection procedures in place at the Quakertown, Pennsylvania plant do not establish, as a matter of law, that these standards were sufficient to discover any defect in the product (see Stagl v Delta Air Lines, 117 F3d 76, 81 [2d Cir 1997]). Mr. Umstead conceded, at his deposition, that he had personally observed, during the installation and welding process, one or both ends of the handle detach from the pail (Dep. Tr. at 66-68).

Furthermore, Cleveland has not demonstrated as a matter of law that the pail, as designed, was not defective and was fit for its intended use (see Smith v AT & T Resource Mgt. Corp., 259 AD2d 480, 481 [1999]; Coley v Michelin Tire Corp., 99 AD2d 795, 795 [1984]). In this regard, Mr. Umstead, at his deposition, testified that when the pail is tested in the Quakertown, Pennsylvania plant, it is empty (Dep. Tr. at 64). He further testified that he did not know if any testing was done in Ohio to support the weight of a full container (Dep. Tr. at 66).

It is noted that Mr. Umstead now states, in his affidavit, that he was "told that" the five-gallon cans and handles had been tested by Cleveland's employees in its Ohio facilities. He asserts that these tests included the testing of the strength of the pail and handle in holding materials, such as paint, which are in the same comparable weight amounts as the paint put in Cleveland's pails by Mercury Paint. However, Mr. Umstead does not specify the source of his knowledge and no affidavit from any witness with personal knowledge of this testing procedure in Ohio has been submitted by Cleveland.

Mr. Umstead also opines that the handle on the pail was not dislodged by anything [*4]defective about the design or manufacture of the handle. Mr. Umstead's conclusory opinion, however, is predicated only upon his alleged lack of awareness of prior claims of injuries and his own observations of Cleveland's assembly procedures. It is not supported by any specific foundational facts, data, or principles, which demonstrate that there was an absence of a defect in the product (see Amatulli v Delhi Constr. Corp., 77 NY2d 525, 534 n 2 [1991]; Acevedo v Pena, 273 AD2d 260, 260 [2000]). It thus is insufficient to establish that the design of the product was safe as a matter of law (see Smith, 259 AD2d at 481).

Cleveland also contends that plaintiff has failed to exclude other causes of the accident. It points to Mr. Umstead's statement that when he viewed the pail after plaintiff's accident, it had dents, dings, and scrapes all over it, and that the handle was bent as if someone had pulled the handle from the side. Mr. Umstead speculates that the pail must have been misused by plaintiff or experienced some other external abuse to the handle or ear. Such damages to the paint pail, however, were observed post-accident, and, indeed, could have occurred from the paint pail's fall rather than from any misuse or external abuse prior to the accident (see Wesp v Carl Zeiss, Inc., 11 AD3d 965, 969 [2004]).

Moreover, contrary to leveland's argument, an injured plaintiff is not required to "negate all other possible reasonable causes of the accident" (Dubecky v S2 Yachts, 234 AD2d 501, 502 [1996]). The mere fact that a defendant might counter the inference of a design or manufacturing defect by suggesting various other explanations for the occurrence does not make it entitled to summary judgment (Narciso v Ford Motor Co., 137 AD2d 508, 508 [1988]).

Cleveland, in arguing that summary judgment should be awarded to it, also contends that plaintiff has failed to produce direct evidence of a defect causing the accident. Plaintiff has submitted the expert affidavit of Julius Lerner, a professional engineer who physically examined the paint pail. Mr. Lerner opines that the paint pail was in an unsafe condition because of a defective design. He bases his opinion on his finding that the ear holes into which the ends of the wire handle are inserted are too large and of an improper rectangular shape. Mr. Lerner further opines that the manufacturing process employed by Cleveland creates the possibility that the handle will become detached from the pail. The court finds that Mr. Lerner's opinions raise triable issues of fact regarding whether the paint pail was in a dangerous and defective condition at the time of its sale (see Coley, 99 AD2d at 795-796).

Cleveland, in response to Mr. Lerner's expert affidavit, argues that Mr. Lerner's testimony does not meet general scientific acceptance and that plaintiff failed to disclose this witness until after the note of issue was filed. The court, however, does not find Mr. Lerner's affidavit to be inadmissible with respect to the principles upon which he relies, and a party's retention of an expert testimony near the time of trial need not result in the preclusion of the expert's testimony (see CPLR 3101 [d] [1] [i]). In any event, a defect in [*5]a product may be proved through the use of circumstantial evidence that the product did not function as intended by the manufacturer (see Dubecky, 234 AD2d at 502; Winckel v Atlantic Rentals & Sales, 159 AD2d 124, 127 [1990]; Narciso, 137 AD2d at 508; Coley, 99 AD2d at 795). Here, plaintiff's own deposition testimony describes how the accident occurred. The fact that the paint pail malfunctioned while plaintiff was using it for its intended and foreseeable use is alone sufficient to raise a triable issue of fact regarding whether it was defective when it was sold by Cleveland (see Porter v Uniroyal Goodrich Tire Co., 224 AD2d 674, 674 [1996]; Coley, 99 AD2d at 795).

Moreover, Cleveland, in making this argument, improperly attempts to shift the burden of proof on its motion to plaintiff. It is the movant's burden in the first instance on a motion for summary judgment to establish that the product was not defective as a matter of law at the time it left its hands (Porter, 224 AD2d at 674). Cleveland has failed to affirmatively demonstrate the merits of its defense. Conclusory allegations regarding the absence of a defect "may not serve as a sufficient predicate for summary judgment" (Coley, 99 AD2d at 796). Rather, a movant must "submit evidence sufficient to establish that the product in question was not defective as a matter of law" (Widmaier v Master Prods. Mfg., 9 AD3d 362, 362 [2004]; see also Porter, 224 AD2d at 674; Potaczala v Fitzsimmons, 171 AD2d 1015, 1017 [1991]; Narciso, 137 AD2d at 509). Cleveland has not submitted evidence constituting a prima facie showing that, as a matter of law, the pail was not defective at the time it left its hands (see Narciso, 137 AD2d at 509).

With respect to his failure to warn claim, plaintiff has alleged that Cleveland has failed to warn of the risk that the wire handle could become detached from its five-gallon paint pails. The issue of whether Cleveland's failure to warn of the dangers that could result from the use of the product as intended is a question of fact for resolution by the trier of fact (see Johnson v Johnson Chem. Co., 183 AD2d 64, 69 [1992]).

Consequently, based upon the above, the court finds that material and triable issues of fact are raised herein. Cleveland's motion for summary judgment must, therefore, be denied (see CPLR 3212 [b]; Widmaier, 9 AD3d at 362; Matthews, Sup Ct, Kings County, Sept. 16, 2005, Rivera, J., Index No. 35180/02).

In support of its cross motion for summary judgment, Mercury Paint argues that plaintiffs' complaint should be dismissed as against it because, assuming that the pail was defectively designed, there is no evidence that it contributed to the manufacture of the pail. Mercury Paint's argument is unavailing. "[I]t is well-settled that [d]istributors of defective products, as well as retailers and manufacturers, are subject to potential strict products liability'" (Harrigan v Super Prods. Corp., 237 AD2d 882, 883 [1997], quoting Giuffrida v Panasonic Indus. Co., 200 AD2d 713, 715 [1994]). Thus, inasmuch as Mercury Paint was "in the direct distributive chain of those who actively placed the subject [pail] into the stream of commerce, [it] is potentially subject to strict products liability" (Bielicki v T. J. Bentley, Inc., 248 AD2d 657, 659-660 [1998]; see also Speller v [*6]Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]; Godoy v Abamaster of Miami, 302 AD2d 57, 60-61 [2003]). Moreover, Mercury Paint, as a manufacturer of paint which sold its product in a container, had a duty to inspect the container after it was filled (see Smith, 259 NY at 296-297).

Mercury Paint, in further support of its cross motion, contends that paintiffs' complaint as against it must be dismissed because it had no knowledge of the pail's alleged defective design. Mercury Paint has submitted the deposition testimony of Jeff Berman, its president. Mr. Berman testified at such deposition that he never personally observed any portion of the handle on any of the pails detached and that he did not acquire any knowledge that such a detachment had occurred.

Mercury Paint's contention is without merit. As previously discussed, notice of a defect is not required to raise a triable issue of fact as to whether a product is defective when sold (see Sulinski, 298 AD2d at 992). Therefore, since material and triable issues of fact have been raised with respect to Mercury Paint's liability, Mercury Paint's cross motion must be denied (see CPLR 3212 [b]).

Accordingly, Cleveland's motion and Mercury Paint's cross motion for summary judgment dismissing plaintiffs' complaint as against them, are denied.

This constitutes the decision and order of the court.

E N T E R,

______________________

J. S. C.