El Sheikh v Chem-Tainer Indus., Inc.
Annotate this CaseDecided on March 13, 2006
Supreme Court, Richmond County
Tamer El Sheikh, Plaintiffs,
against
Chem-Tainer Industries, Inc., d/b/a TODD ENTERPRISES, SCC PUMPS, INC., "X" COMPANY Being the Seller and Distributor, Name Presently Unknown, of a Certain LowBoy Oil Drain and "Y" COMPANY, Being the Lessor, Name Presently Unknown, of a Certain LowBoy Oil Drain., Defendants.
10020/04
Judith N. McMahon, J.
Factual Background
On the morning of June 11, 2003, the plaintiff reported to work at Staten Island Diesel Power Systems. The plaintiff, who was 30 years old at the time, had been hired as an apprentice mechanic about a month before. The owner instructed him to assist a more experienced mechanic with removing contaminated diesel fuel from a truck. The plaintiff's co-worker transferred the fuel from the truck's tank to a "plastic boat", and then placed the plastic boat near the Todd LowBoy Oil Drain (defendant Chem-Tainer is the manufacturer of the LowBoy). This was the first time the plaintiff was using the LowBoy. While the plaintiff poured the fuel into the Low Boy, his co-worker plugged the electric cord into the socket (The machine did not have an on/off switch; therefore, the only way to activate the machine was to plug it in.) The plaintiff heard the pump (which was manufactured by defendant SCC Pumps Inc) "run" for about five [*2]seconds, and then it "exploded".
The plaintiff suffered serious injuries as a result of the explosion. He was hospitalized from June 11, 2003 until September 22, 2003, and was in a coma for 35 of those days. He had second and third degree burns over 40% of his body and inhalation burns to the lungs. The plaintiff has had five scar removal surgeries and currently takes anti-anxiety medication for post-traumatic stress disorder. He has not returned to work.
Procedural Background
The plaintiff commenced this action to recover damages for personal injuries based on strict products liability, failure to warn, negligence, and breach of implied warranties. Following joinder of issue, defendant SCC Pumps Inc. (hereinafter "SCC") moved for summary judgment dismissing the complaint.
In support of its motion, SCC contends that its warnings were adequate as a matter of law. SCC placed a warning decal on the pump stating, "Not for use with FLAMMABLE, EXPLOSIVE, or COMBUSTIBLE LIQUIDS". Additionally, the operating instructions accompanying the pump provided, "NOTE: Unit is NOT RECOMMENDED for use with soap detergents, gasoline, flammable, explosive or combustible liquids or other fluids not compatible with pump component materials. Do not use unit in enclosed areas. Contact Factory For Application Assistance." Further, SCC argued that it was unaware that Chem-Tainer intended to place the pump within the cavity of the LowBoy so that the warning would not be visible. Finally, SCC concluded that because it was a component part manufacturer, it was not responsible for Chem-Tainer's subsequent alteration of its product.
In opposition, the plaintiff submitted an affidavit of an engineer which set forth that the pump was defective because it was unsafe for pumping used oil. Used oil often contains gasoline and diesel fuel, which is combustible. Because the pump was not spark proof, it should never have been sold for use in an automotive industry where gasoline and diesel fuel are likely to be present. Further, the expert opined that the warnings were inadequate because they should have been placed on the cord, where they would be visible to all users.
The plaintiff also submitted transcripts of the depositions of SCC's President, Kenneth Porter, and Chem-Tainer's President, James Glen. In his affirmation, the plaintiff's attorney contended that SCC knew that the pump would be used in an unsafe environment. SCC's President testified at his deposition that the purpose of the pump was to remove/transfer used motor oil in the automotive service and repair industry. However, SCC's President admitted that the pump should not have been used with any combustible or flammable liquids because the motor was not spark proof. Further, Chem-Tainer's President testified that prior to purchasing the SCC pump, Chem-Tainer discussed with SCC that the pump would be a component of the LowBoy. The plaintiff's attorney concluded that there were numerous issues of fact precluding the granting of summary judgment.
In his affirmation in opposition, Chem-Tainer's attorney contended that SCC failed to establish that its warnings were adequate as a matter of law. Additionally, Chem-Tainer's attorney argued that SCC knew that the pump would be placed within an end-product; therefore, it should have placed the warning label on the power cord. Further, Chem-Tainer's attorney asserted that SCC was liable under the design defect theory because the pump itself, independently of the LowBoy, was unreasonably dangerous. Finally, Chem-Tainer's attorney [*3]concluded that SCC was not entitled to summary judgment because there were numerous issues of fact.
The court agrees with the plaintiff and Chem-Tainer that SCC's motion for summary should be denied. It is for the trier of fact to determine whether the pump was defectively designed and whether the warnings were inadequate.
Analysis
Manufacturers of defective products may be held strictly liable for injury caused by their products meaning that they may be liable regardless of privity, foreseeability or reasonable care (see, Sprung v. MTR Ravensburg, Inc., 99 NY2d 468, 472 [2003]; Codling v. Paglia, 32 NY2d 330, 342 [1973]). A product may be defective when it contains a manufacturing flaw, is defectively designed, or is not accompanied by adequate warnings for the use of the product (see, Liriano v. Hobart Corp., 92 NY2d 232, 237 [1998]; Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 478-479 [1980]). The theory of this case is that both the LowBoy and the pump contained within the LowBoy, were improperly designed, and the warnings on both were inadequate. For the purpose of this motion, the focus is on the design and warnings of the pump.
I. Design Defect
A. Strict Liability
A manufacturer is under a duty to use reasonable care in designing his product when "used in the manner for which the product was intended as well as an unintended but yet reasonably foreseeable use" (Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d at 480). Liability attaches when the product, as designed, presents an unreasonable risk of harm to the user (see, Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983]). The existence of a design defect involves a risk/utility analysis that requires an assessment of whether "if the design defects were known at the time of the manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner" (Voss v. Black & Decker Mfg. Co., 59 NY2d at 108; see, Liriano v. Hobert Corp., 92 NY2d at 239). A component part manufacturer is exposed to liability where it supplies a defective part which causes an accident (see, Ayala v. V& O Press Co., 126 AD2d 229 [2d Dept. 1987]).
Initially, absent from all of the papers submitted on this motion is any discussion that the plaintiff was using the product in an unintended manner. The pump in question was designed to drain used motor oil, not diesel gasoline. However, as set forth above, liability may attach for a use that is unintended, but yet reasonably foreseeable (see; Lugo v. LJN Toys, 75 NY2d 850, 851 [1990]; Johnson v. Johnson Chemical Co., 183 AD2d 64, 69 [2d Dept 1992]). Because neither defendant argues that the draining of diesel gasoline was not reasonably foreseeable, for the purpose of this motion, it will be assumed that it was. However, whether a particular way of misusing a product is reasonably foreseeable, is ordinarily a question of fact for the jury (see, Heller v. Encore of Hicksville, Inc., 53 NY2d 716 [1981]; Johnson v. Johnson Chemical Co., Inc., 183 AD2d at 69, supra).
The plaintiff contends that the pump, because it was not spark proof, should never have been used to drain used motor oil which often contains combustible and flammable liquids. SCC [*4]argues that although it manufactured the pump, it was unaware as to how Chem-Tainer would use it. Although it has been held that a component part manufacturer who produces a product in accordance with the buyers's specification, which fail to reveal any inherent danger, will not be held liable in a strict products liability case (see, City of Cohoes v. Kestner Engineers, P.C., 226 AD2d 914, 917 [3d Dept. 1996]; Leahy v. Mid-West Conveyor Co., 120 AD2d 16, 18 [3d Dept. 1986]), this principle only applies when the component part manufacturer was not aware of and did not take part in the design and construction of the assembled unit (see, City of Cohoes v. Kestner Engineers, P.C., 226 AD2d at 917, supra; Leahy v. Mid-West Conveyor Co., 120 AD2d at 18, supra). Here, the deposition of Chem-Tainer's President raises a question of fact as to whether SCC was aware of and took part in the design and assembly of the LowBoy (see, City of Cohoes v. Kestner Engineers, P.C., 226 AD2d at 917, supra; compare, Butler v. Interlake Corp., 244 AD2d 913 [4th Dept. 1997][Plaintiffs offered no proof that the component part manufacturer knew for what specific purpose the part was ordered for] ). Moreover, the deposition of SCC's President raises a question of fact as to whether SCC knew its product was going to be used to drain used motor oil, even though the motor was not spark proof. Thus, there are numerous issues precluding summary judgment on the strict liability design defect claim (see, LaFonant v. Hollymatic Corp, 215 AD2d 444 [2d Dept. 1995]).
SCC also contends that this case falls under the rule that a component part manufacturer is not liable when the end-product manufacturer substantially alters its product and the accident would not have occurred but for this modification (Robinson v. Reed-Prentice Div. of Package Mach. Co. 49 NY2d 471, supra; see, Liriano v Hobart Corp., 92 NY2d 232, supra; Ayala v V&O Press Co., 126 AD2d 229, supra). SCC Pumps alleges that Chem-Tainer modified the pump by placing it within the LowBoy cavity rendering it impossible to see the warnings. SCC fails to understand that the plaintiff is not alleging that the inadequacies of the warnings caused the accident. The plaintiff contends that the accident was caused because the pump never should have been used to drain used oil. This design defect theory is separate and distinct from the failure to warn cause of action. Because there was no modification of the pump, this case is clearly distinguishable from those cases cited by SCC regarding substantial alteration of a product.
B. Negligence
A cause of action for a negligently designed product differs only from one under strict products liability in that the plaintiff must prove that the manufacturer acted unreasonably in designing the product (see, Voss v. Black & Decker, 59 NY2d at 107). As set forth above, it is for the trier of fact to determine whether SCC acted unreasonably in designing a pump, that was not spark-proof, to pump used oil.
C. Breach of Warranty
The plaintiff also asserts causes of actions for breach of implied warranties. UCC 2-314 provides, in relevant part: "(1) [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. *** (2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and ... (c) are fit for the ordinary purposes for which such goods are used; ***." UCC 2-315 provides, in relevant part: "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is ... an implied [*5]warranty that the goods shall be fit for such purpose."
The Court of Appeals has held that liability under strict products liability and implied warranty theory are essentially the same, except that under the implied warranty theory, it is not necessary to show the feasibility of alternative designs or the manufacturer's "reasonableness" in marketing it in the unsafe condition (see, Denny v Ford Motor Co., 87 NY2d 248, 258-259 [1995]). And, in most cases, as a practical matter, the distinction between the defect concepts in tort law and in implied warranty theory, has little or no effect (see, Denny v. Ford Motor Co., 87 NY2d at 262, supra]). In considering the instant motion, the distinction has no effect because clearly, if there is an issue of fact on design defect under strict liability, there must similarly be an issue of fact under the less stringent UCC standard.
II. Inadequate Warnings
A. Strict Liability
Unlike design decisions that involve the consideration of many interdependent factors, the inquiry in a duty to warn case is much more limited, focusing principally on the foreseeability of the risk and the adequacy and effectiveness of any warning (see, Liriano v. Hobart Corp., 92 NY2d at 239, supra). Liability may be premised upon the complete absence of warnings as to a particular hazard, or upon the inclusion of warnings which are insufficient (see, Johnson v. Johnson Chemical Co., 183 AD2d 64, 69 [2d Dept. 1992]). Moreover, there may be liability in cases when it is proved that the abnormal use of the product in question was reasonably foreseeable (see, Johnson v. Johnson Chemical Co., 183 AD2d at 69, supra).
In this case, it is undisputed that Chem-Tainer placed SCC's pump within the cavity of the LowBoy rendering it impossible for the user to read the warning. However, the plaintiff contends that SCC's warnings were still inadequate because the warnings should have been placed on the electrical cord of the pump. Because the pump did not have an on/off switch, all users would necessarily see a warning placed on the cord when they plugged the pump in. Moreover, the plaintiff argues that SCC should have put the warnings on the cord since it knew that the pump would be placed within the LowBoy, rendering its warnings inaccessible. The crux of SCC's argument on this motion is that it fulfilled its duty to warn by placing a label on the pump and warning against misuse in the instructions.
Failure-to-warn liability is intensely fact-specific, including, but not limited to, such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause (Liriano v Horbart Corp., 92 NY2d at 243, supra). Whether a particular way of misusing a product is reasonably foreseeable, and whether the warnings which accompany a product are adequate to deter such potential misuse, are ordinarily questions for the jury (see, City of Cohoes v. Kestner Engineers, P.C., 226 AD2d 917, 918 [3d Dept. 1996]; Johnson v. Johnson Chemical Co., 183 AD2d 64, 69 [2d Dept. 1992]), and is not ordinarily susceptible to the drastic remedy of summary judgment (see, Oliver v. NAMCO Controls, 161 AD2d 1188 [4th Dept. 1990]). Here, the plaintiff has raised an issue of fact as to whether the warnings should have been placed on the electrical cord as is customarily seen on blow driers for hair. Thus, summary judgment is inappropriate.
B. Negligence
"Where liability is predicated on a failure to warn, New York views negligence and strict liability claims as equivalent" (Martin v Hacker, 83 NY2d 1, 8, n. 1 [1993]). Thus, there are [*6]questions of facts as to the adequacy of the warnings sounding both in negligence and strict liability. Accordingly, it is
ORDERED, that defendant SCC Pumps Inc's motion for summary judgment dismissing the complaint as against it is denied in its entirety.
This is the Decision and Order of the Court.
E N T E R,
Dated: March 13, 2006
J.S.C.
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