Granata v Sub-Zero Freezer Co., Inc.

[*1] Granata v Sub-Zero Freezer Co., Inc. 2006 NY Slip Op 50901(U) [12 Misc 3d 1155(A)] Decided on March 27, 2006 Supreme Court, Richmond County Giacobbe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2006
Supreme Court, Richmond County

Theresa Granata, Plaintiff,

against

Sub-Zero Freezer Company, Inc., L&J Appliance Service, Inc. and Staten Island Appliance Company, Defendants.



10655/03

Anthony I. Giacobbe, J.

Upon the foregoing papers, motions numbered 2955 and 3000, both for summary judgment, are granted.

This is an action to recover compensatory and punitive damages for personal injuries allegedly incurred by plaintiff when a refrigerator fell on her. The refrigerator was manufactured by defendant Sub-Zero Freezer Company, Inc. ("Sub-Zero"), sold to plaintiff by defendant Staten Island Appliance Company ("Staten Island Appliance"), and serviced by defendant L&J Appliance Service, Inc. The complaint sounds in gross negligence and strict products liability.

In Motion No. 2955, Staten Island Appliance moves for summary judgment dismissing the Complaint and all cross claims against it on the ground that, while it sold the refrigerator to plaintiff, it did not install the unit and was not responsible for plaintiff's injury.

In Motion No. 3000, Sub-Zero moves to dismiss the complaint against it on the ground that the refrigerator was "non-defective and merchantable" when purchased by plaintiff, and that the proximate cause of any injury to plaintiff was her own failure to install the unit properly in accordance with the manufacturer's instructions.

Both defendants maintain that only properly installing the unit in accordance with the warnings and instructions provided for the unit completely eliminates the risk of tipping under all load conditions. It is undisputed that the sales receipt states that the unit was to be installed by [*2]the customer, and that plaintiff hired a contractor, not a party to this action, to install the refrigerator in her kitchen.

In opposition, plaintiff argues that there are triable issues of fact that preclude summary judgment.

Defendant Sub-Zero manufactured the refrigerator unit on August 28, 1990, and shipped it to a distributor that sold it to defendant Staten Island Appliance in l990 or l991. Plaintiff purchased the unit, a floor model, from Staten Island Appliance on or about November 3, 1993. The unit was delivered to plaintiff's home that same day, and later installed by a local carpenter hired by plaintiff. On or about August 17, 1994, the unit malfunctioned and was serviced by defendant L&J Appliance Service, a Sub-Zero service agent that allegedly pulled the refrigerator out from the wall and replaced a defective part. It is undisputed that L&J did not advise plaintiff at the time that the unit had not been properly installed or that it might tip over if not installed in accordance with the manufacturer's instructions.

The accident occurred on March 3, 2000. Plaintiff states that when she opened all the doors of the unit, it toppled over onto her causing personal injury.

It is undisputed that when Sub-Zero manufactured the unit, it affixed a label containing installation instructions on the exterior front panel.[FN1] That label remained on the unit after its purchase by plaintiff, and was present when the unit was inspected by the parties in September 2004 during the course of the discovery portion of this litigation. Plaintiff acknowledges that she saw the sticker on the front panel prior to its installation, but never read it. Nor does she know whether the independent contractor she hired to install the refrigerator read the label.

The refrigerator unit itself is only twenty-four inches deep, designed so that it is flush with standard twenty-four-inch-deep kitchen base cabinets. It thus has a shallow footprint, or base, that requires certain other design characteristics. It is wider and shallower than the common "stand-alone" refrigerator of similar capacity and, defendant concedes, "these dimensions above the shallower front-to-back footprint...may increase the relative risk (as compared to a stand-alone unit) that the refrigerator, if not properly installed, might tip forward under certain circumstances" (Sub-Zero Memorandum of Law, p. 4).

According to Allen Wilkins, Sub-Zero's Chief Operations Officer, in additional to the label affixed to the exterior panel, Sub-Zero also ships each unit to the distributor with both an Instruction Manual and an Installation Manual, together with installation hardware consisting of brackets, nut and bolts. All three documents stress the importance of properly installing the refrigerator.

According to Robert A. Zampardi, President of Staten Island Appliance, when the subject unit was received from the distributor, the two manuals and the hardware were inside the unit, although he does not recall seeing the exterior sticker. Mr. Zampardi further states that whenever a floor model is sold, as a general practice he personally checks the unit to see that all manuals and hardware, if any, are in the unit-although he has no independent recollection of this particular [*3]sale. Plaintiff states that no manuals were in the unit when it was delivered to her, and as noted, states that she did not read the exterior label.

At some time subsequent to the manufacture of the subject unit and prior to its sale to plaintiff, Sub-Zero became aware that the units "could tip forward if not properly installed, as covered in our Installation Manual."[FN2] In notices to its distributors and service agents, dated December 2, 1992 and December 10, 1992 respectively, Sub-Zero advised the following:

The tipping may occur under extreme load conditions

if the unit is not properly blocked. Although we feel the

possibility of this occurring is remote, as a precaution for

our customers, we intend to see that corrective action is

taken with every unit that may be improperly installed.

At the same time, Sub-Zero began providing "blocking kits" with all models then being shipped, and requested its distributors to identify units in their present inventories that also would need blocking kits. The blocking kit consisted of a wooden block, two "L" brackets and eight screws, together with instructions in how to secure the block across the top of the unit and into existing wall studs to prevent the unit from tipping forward.

In the December 2, 1992 letter to distributors, Sub-Zero also stated that it intended to contact all customers who had purchased the units since January 1, 1989 and requested the distributors to provide the serial numbers of all such units, together with the name and contact information of all consumers.

In the December 10, 1992 letter to its service agents, Sub-Zero advised that it was attempting to contact all customers who owned the affected units and requested that they contact the service agencies if the units were not properly blocked. It instructed the agents to take corrective action in accordance with the blocking instruction if contacted by a customer. Sub-Zero also provided the service agents with a supply of warning labels to be affixed to each unit on its main frame near the serial number. It also instructed the agents:

In the future whenever you service any unit with a serial number

higher than 823654,[FN3] ensure that it is properly blocked. When you

correct the blocking of a unit, whether at the specific request of a

customer or during the course of a routine service call, please give

special attention to the following:

1. Properly identify the unit by serial number.

2. Make the modifications, if necessary, using [the] blocking kit....

3. Make sure the unit is leveled and that the front leveling legs

are in firm contact with the floor.

4. Whether or not modification is necessary, a warning label must

be affixed to all models on the main frame near the serial number [*4]

tag. In addition, complete the acknowledgment card and return

it with your labor invoice.

At the time of these notices, the subject unit was on display on the sales floor of defendant Staten Island Appliances. Mr. Zampardi testified at his deposition that he had never seen copies of the December 1992 notices, and did not recall seeing either a yellow warning sticker on the unit or a block of wood inside the unit.

For his part, Mr. Wilkins was unable to say that the December 2, 1992 notice was sent to the distributor that sold the unit to Staten Island Appliances, and did not know whether L&J Appliance Service, Inc. was a Sub-Zero service agent at the time of the December 10, 1992 notice.

In moving for summary judgment, defendant Staten Island Appliance alleges that when it delivered the unit to plaintiff, the installation instructions were affixed to the outside of the unit and the installation hardware (but not necessarily the blocking kit) was inside. Therefore, they argue, plaintiff cannot prove that inadequate instructions were a substantial factor in bringing about her injury. Rather, they claim that plaintiff's injuries were caused by her own negligence and that of the independent contractor who she had hired to install the unit, and who failed to install it properly.

In its cross motion for summary judgment, Sub-Zero alleges that (1) the unit was merchantable when purchased; (2) it shipped the unit with installation hardware and multiple sets of warnings and instructions indicating the need for proper installation; and (3) despite being aware of the instructions, plaintiff ignored them and failed to have the unit installed properly. Therefore, it argues, plaintiff's failure to have the unit properly installed was the sole proximate cause of her injury.

In opposition, plaintiff argues that where there is any doubt as to the material facts, summary judgment must be denied. She alleges that (1) Sub-Zero was aware of the tipping problem prior to her purchasing the unit from Staten Island Appliance, an "authorized" Sub-Zero retailer; (2) at least as early as December 1992, well before she purchased the unit, the manufacturer's own protocol required that an additional warning label and blocking kit should have been placed inside the refrigerator, but neither the inside label nor the blocking kit were there when the unit was delivered; (3) she received neither an Instruction Manual nor Operations Manual when she purchased the unit; and (4) pursuant to Sub-Zero's notice to its service agents, L&J should have advised her that the unit was improperly installed and should have taken corrective action during its service call in 1994.

The gravaman of plaintiff's complain lies in the allegedly defective design of the unit, which, when coupled with the inadequate warnings about improper installation, was a substantial factor in causing her injury.[FN4]

In regard to the first issue, plaintiff presents the affidavit of Anthony V. Sorrentino, a Professional Engineer, who inspected the refrigerator, and states that the unit was top-heavy and likely to tip when the front doors were opened simultaneously because the condenser was [*5]mounted on top of the unit and the front doors were weighted with decorative panels. He states that a simple interlocking mechanism would have prevented the doors from being opened at the same time, thus reducing the risk of tipping.

Concerning the second issue, plaintiff maintains that her allegation of an inadequate warning must go to the jury because there is a genuine issue of material fact as to whether the warning label provided by defendant was adequate to prevent her injuries. That is, even a consumer such as plaintiff, who by her own admission did not read the label, might have heeded a more prominent, i.e., adequate warning.

Turning first to the products liability issue, it is well-settled that in order to sustain a claim based upon negligence and strict products liability, it is incumbent upon plaintiff to establish that the product was defective as the result of either a manufacturing flaw or improper design, and that the defect was a substantial factor in bringing about the injury (Godoy v. Abamaster of Miami, Inc., 302 AD2d 57, 60 [2nd Dept.], lv dismissed, 100 NY2d 614 [2003]).

Here, in moving for summary judgment, defendants have established that a properly installed unit will not tip over, thereby shifting the burden to plaintiff to demonstrate by evidentiary facts that genuine issues of fact exist as to the issue of defective design (Alvarez v. Prospect Hosp, 68 NY2d 320, 324 [1986]).

Notwithstanding the general proposition that the ultimate resolution of negligence actions is best left to the trier of fact, mere conclusory and unsubstantiated assertions not supported by competent evidence are insufficient to defeat a motion for summary judgment (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Thus, a party opposing a summary judgment motion must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist (Kornfeld v. NRX Tech, Inc., 93 AD2d 772 [1st Dept. 1983], aff'd, 62 NY2d 686 [1984]).

Here, in addressing the issue of negligent design, plaintiff relies on the affidavit of her expert, a professional engineer, who opines that the risk of tipping can be reduced by a door-interlocking mechanism that would prevent all doors from being opened at the same time. However, despite the alleged efficacy of such a mechanism, plaintiff has not established that such a modification, even if technically feasible, would completely eliminate the risk of tipping or that the failure to have included the mechanism in the design would have prevented her injury. To that extent, the engineer's report is immaterial to the issue of negligent design.

Plaintiff having failed to raise a question of fact regarding defendants' prima facie demonstration that proper installation of the unit, consistent with its intended design and use as a "built-in" refrigerator, would eliminate any tipping problem, has failed to meet her burden and defendants are entitled to summary judgment on this issue (see, Gilbert Frank Corp v. Federal Insurance Co., 70 NY2d 966, 967 [1988]).

Similarly, plaintiff has failed to carry her burden in regard to the issue of notice. It is undisputed that Sub-Zero affixed a warning label containing installation instructions on the exterior front panel of the unit. Plaintiff acknowledges that she saw the sticker on the front panel prior to its installation, but never read it. In addition she testified that the unit did not contain an instruction manual, an installation manual, hardware, or a blocking kit.

In moving for summary judgment, defendants properly distinguish a claim based on an alleged failure to warn from a claim based upon a failure to warn adequately. In a failure-to-warn case, the plaintiff has two causation issues: first, did the failure to warn cause the plaintiff to use [*6]the product in a way she would not have if there had been a warning; second, did the manner in which the plaintiff used the product cause the injury. Thus, the salient fact in a failure-to-warn case is the lack of any warning at all (see e.g., Alfieri v. Cabot Corp, 17 AD2d 455 [1st Dept. 1962], aff'd, 13 NY2d 1027 [1963]).

Here, although couched in terms of a failure-to-warn, the essence of plaintiff's claim is addressed to the adequacy of the warning (see e.g., Fox v. Wyeth Laboratories, Inc., 129 AD2d 611 [2nd Dept. 1987]), as it is undisputed that the warning sticker was attached to the front of the unit when she purchased it, when it was delivered, and when it was put into place. Under such circumstances, it remains plaintiff's burden to prove both the inadequacy of the warning and that the failure to provide adequate warning was a proximate cause of her injury (see e.g., German v. Morales, 24 AD3d 246 [1st Dept. 2005]). Moreover, "this burden includes adducing proof that the user of [the] product would have read and heeded a [proper] warning had one been given" (Sosna v. American Home Products, 298 AD2d 158 [1st Dept. 2002]; compare, German v. Morales, supra, in which there was expert testimony that the warning was inadequate). Here, it is undisputed that plaintiff saw the sticker and did not read it.

While, "a plaintiff who admittedly failed to read the warnings supplied by the manufacturer of a product [may] recover damages based on the theory that the manufacturer's warnings were inadequate (Johnson v. Johnson Chem Co., supra at 66),[FN5] here, there is no showing that the exterior label, a one-foot by two-foot white and blue sticker that included diagrams and an "installation checklist," was in any way inadequate for its purposes.

Where the undisputed facts show that the manufacturer provided timely, adequate warnings that were ignored by the plaintiff prior to her injury, plaintiff cannot establish the critical element of proximate cause and summary judgment in favor of the moving defendants is warranted (see, Wolfgruber v. The Upjohn Co., 72 AD2d 59, 62-63 [4th Dept. 1979], aff'd, 52 NY2d 768 [1980]; see also, Martin v. Hacker, 83 NY2d 1, 8 [1993]).

Accordingly, it is

ORDERED that the motion (No. 2955) of defendant Sub-Zero Freezer Company, Inc., and the motion (No. 3000) of defendant Staten Island Appliance Company, both for summary

judgment, are granted; and it is further

ORDERED that the complaint and cross claims against defendants Sub-Zero Freezer Company, Inc. and Staten Island Appliance Company are severed and dismissed; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

ENTER:

Dated: March 27, 2006________________________________

Anthony I. Giacobbe

Justice of the Supreme Court [*7] Footnotes

Footnote 1: The unit is manufactured and soled without a decorative cover for the front panel where the label is affixed. Decorative panels later can be installed by the consumer, covering that front panel and the label. Shortly after the refrigerator was installed, plaintiff covered the front panel with decorative panels matching the other kitchen cabinets.

Footnote 2: Mr. Wilins testified that all built-in refrigerators, as opposed to free-standing units, have a tendency toward "tippiness."

Footnote 3: The Serial Number of plaintiff's unit is 868872.

Footnote 4: The failure to provide warning gives rise to liability not only against the manufacturer, but against the retailer as well (Johnson v. Johnson Chem Co., Inc., 183 AD2d 64, 71-72 [2nd Dept. 1992]).

Footnote 5: Even though the plaintiff in Johnson admittedly had not read the label warning her to turn off all pilot lights prior to use of the product, she was able to show that even if she had read the warning, she would not have understood it and, thus, would not have avoided the accident.