Trotter v Rashti & Rashti

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Trotter v Rashti & Rashti 2012 NY Slip Op 31072(U) April 18, 2012 Supreme Court, New York County Docket Number: 102350/2009 Judge: Louis B. York Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON412312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number : IO235012009 TROlTER, RICHARD vs. RASHTI & RASHTI SEQUENCE NUMBER : 005 INDW NO. MOTION DATE MOTION SE9. NO. SUMMARY JUDGMENT The followlng paperr, numbered I to Notice of MotlonlOrder to Show Cauio , wore read on thli motion to/for -Amdavlte - Exhlblta Answering Affldavltr - Exhlbltm Replylng Amdavlb INo(4. INo(*). INo(*). Upon the forsgolng papew, it is ordend that this rnotlon Is FILED ..................................................................... CASE DISPOSED L 1 ~ ~DISPOSITION ~ ~ CHECK AS APPROPRIATE: .......................... MOTION IS: GRANTED DENIED ,eSORANTED IN PART OTHER CHECK IF APPROPRIATE: ................................................ 0SEllLE ORDER SUBMIT ORDER 0DO NOT POST FIDUCIARY APPOINTMENT REFERENCE 1. CHECK ONE: 2. 3. t [* 2] SUPREME COURT O F THE STATE O F NEW YORK COUNTY OF NEW YORK: PART 2 -__ _______________________ _ _ _ _X RICHARD TROTTER and LEAH ROSE TROTTER, I n d i v i d u a l l y and a s Next B e s t F r i e n d s of DAVID TROTTER, A Minor, Plaintiffs, I n d e x No.: 102350/09 -against- DECISION RASHTI & RASHTI a / k / a R A S H T I & COMPANY, INC., a / k / a HARRY J . RASHTI & COMPANY, INC., and FISHER P R I C E , FILED APR 2 3 2012 Defendants. X ___LI--____________ll_____________ll____ LOUIS B. YORK, J.: NEW YORK COUNTYfkA-RK'S OFFICE Company, - 1 Defendant R a s h t i & Rashti a / k / a Rashti a / k / a Harry J. R a s h t i & Company, I n c . CPLR 3 2 1 2 , & ( R a s h t i ) moves, p u r s u a n t t o for summary judgment d i s m i s s i n g t h e c o m p l a i n t as a s s e r t e d against it. P r e v i o u s l y , t h i s m a t t e r was s e t t l e d w i t h defendant Fisher-Price, Inc. s/h/a F i s h e r P r i c e . BACKGROUND On o r a b o u t December 2 5 , 2 0 0 7 , p l a i n t i f f R i c h a r d T r o t t e r p l a c e d h i s s o n , p l a i n t i f f David T r o t t e r , who was t w o months old a t the time, i n a b o u n c e r c h a i r t h a t was r e s t i n g on t o p of a k i t c h e n t a b l e and c o v e r e d him w i t h a b l a n k e t d e s i g n e d , m a n u f a c t u r e d and m a r k e t e d b y R a s h t i . T h e r e was a c a n d l e on t h e t a b l e , c l o s e t o t h e b o u n c e r c h a i r , and t h e bouncer c h a i r and t h e b l a n k e t caught f i r e , b u r n i n g t h e bouncer c h a i r and i n j u r i n g 1 [* 3] David s arm and leg. According to the complaint, David s t o r s o was unharmed because he was wearing a flame-resistant suit. At the exact time of the occurrence, Richard had left David alone while he, Richard, went to the bathroom. The complaint alleges three causes of action against Rashti: (1) strict products liability, based on design, marketing and manufacturing defects; (2) negligence; and (3) breach of implied warranty. At oral argument on this motion, plaintiffs withdrew their claim based on manufacturing defects. At his examination before trial, Richard testified that, prior to leaving David alone, he did not check to see whether the candle was lit, but agreed that it is possible that, when he placed the blanket over David, he may have accidentally placed it Onto the candle a s well. Richard EBT, at 1 8 0 . At the time that he left David alone, Richard did not inform his wife, plaintiff Leah Rose Trotter, that he was leaving David alone, did not ask her to come into the room to watch David, and there was no baby monitor in the room where David was left. Richard could not see David while he was in the bathroom. When the bouncer and blanket started to burn, David starting screaming, which brought both Richard and Leah running into the room where David was sitting. They removed David from the flames and they extinguished the fire, and they immediately called 911. Richard admitted b e a r i n g some responsibility for David s 2 [* 4] i n j u r i e s , s a y i n g t h a t if h e had n o t l e f t David a l o n e i n a room w i t h a l i t c a n d l e , t h e a c c i d e n t may n e v e r have happened, and he s t a t e d t h a t h e d i d n o t n e e d anyone t o t e l l him t h a t f a b r i c can burn. F u r t h e r , R i c h a r d , who i s a l i c e n s e d a t t o r n e y , s a i d t h a t i t i s n o t h i s p r a c t i c e t o r e a d w a r n i n g s on p r o d u c t s t h a t a r e used b y h i s family. The c a n d l e h a s a w a r n i n g t h a t a d v i s e s t h a t it s h o u l d n e v e r b e l e f t u n a t t e n d e d , a n d t h e b o u n c e r c h a i r warned t h a t i t s h o u l d n o t b e u s e d on a n e l e v a t e d s u r f a c e , which i t w a s a t t h e t i m e o f the accident. M i c h a e l C . R a s h t i ( M i c h a e l ) was deposed i n t h i s m a t t e r and t e s t i f i e d t h a t t h e b a b y b l a n k e t t h a t was m a n u f a c t u r e d b y R a s h t i was c o n s t r u c t e d o f 1 0 0 % woven a c r y l i c f i b e r w i t h a 1 0 0 % p o l y e s t e r s a t i n border. The b l a n k e t , which i s p a r t o f a s e t w i t h a baby p i l l o w , was d e s i g n e d a n d s o l d b y R a s h t i . The b l a n k e t was m a n u f a c t u r e d i n China by a n o t h e r company, t h e n a s s e m b l e d i n China by a d i f f e r e n t company. M i c h a e l a v e r r e d t h a t he h a s b e e n i n t h i s b u s i n e s s f o r o v e r 5 0 y e a r s , t h a t t h i s i s t h e f i r s t t i m e t h a t any c l a i m h a s b e e n made t h a t a child was b u r n e d i n c o n n e c t i o n w i t h one of R a s h t i ' s b l a n k e t s , a n d t h a t h e was unaware o f a n y of Rashti's a c r y l i c blankets ever f a i l i n g a flammability test. M i c h a e l s t a t e d t h a t t h e model b l a n k e t was t e s t e d p r e - s a l e by an o u t s i d e t h i r d - p a r t y l a b o r a t o r y , b o t h p r e - and p o s t - p r o d u c t i o n , and p a s s e d both t e s t s . 3 [* 5] According t o t h e a f f i d a v i t o f C l y d e C a n t o r , a t e x t i l e f l a m m a b i l i t y e x p e r t , t h e r e i s no mandated f l a m m a b i l i t y s t a n d a r d for baby b l a n k e t s o r b l a n k e t s i n g e n e r a l ; however, ASTM D - 4 1 5 1 , e n t i t l e d Standard T e s t Method for F l a m m a b i l i t y of B l a n k e t s , h a s been t h e v o l u n t a r y s t a n d a r d u s e d by t h e b l a n k e t i n d u s t r y s i n c e 1972. C a n t o r had t h e o p p o r t u n i t y t o i n s p e c t t h e remnant of t h e b l a n k e t i n q u e s t i o n , a s w e l l a s a R a s h t i sample. The a c r y l i c baby b l a n k e t s o l d b y R a s h t i p a s s e d t h i s f l a m m a b i l i t y test, a s w e l l a s a more s t r i n g e n t test t h a t p e r t a i n s t o c l o t h i n g i n general. C a n t o r o p i n e d t h a t t h e r e a r e no o t h e r c o m m e r c i a l l y a v a i l a b l e m a t e r i a l s f o r baby b l a n k e t s t h a t a r e more f i r e r e s i s t a n t t h a n a c r y l i c , which i s f a r l e s s flammable t h a n wool o r s i l k . Further, Cantor s a i d : Warning l a b e l s r e g a r d i n g f l a m m a b i l i t y of t h i s b l a n k e t o r o t h e r o r d i n a r y b l a n - k e t s a r e not n e c e s s a r y and would be c o n t r a r y t o i n d u s t r y s t a n d a r d s . M r . T r o t t e r t e s t i f i e d t h a t he knew f a b r i c s could c a t c h on f i r e from a c a n d l e and c a u s e b u r n i n j u r i e s . A w a r n i n g l a b e l on t h i s b l a n k e t would n o t have p r e v e n t e d t h i s b u r n i n c i d e n t . The p l a i n t i f f d i d n o t h e e d w a r n i n g s t h a t a p p e a r e d on both t h e c a n d l e and bouncer. I t i s my o p i n i o n t h a t t h i s f i r e i n c i d e n t was c a u s e d by t h e c a r e l e s s n e s s on t h e p a r t o f R i c h a r d T r o t t e r who p u t h i s i n f a n t c h i l d i n a b o u n c e r t h a t w a s on a k i t c h e n t a b l e c l o s e t o a l i t c a n d l e on t h a t same table, and w h i l e c o v e r i n g t h e i n f a n t w i t h a b l a n k e t h e allowed a p o r t i o n of t h e b l a n k e t o r b o u n c e r t o c o n t a c t open f l a m e or s p a r k from a lit c a n d l e a f t e r which he l e f t t h e c h i l d unattended. R a s h t i c o n t e n d s that p l a i n t i f f s c a n n o t establish a c l a i m for design d e f e c t because: (1) t h e b l a n k e t was n o t u n r e a s o n a b l y 4 [* 6] dangerous; (2) there is no safer alternative design; and (3) Richard's conduct, not the blanket, was the cause of the accident. Further, regarding any claim of a marketing defect, Rashti argues that it does not have a duty to warn of open and obvious conditions, such as the flammability of fabrics, a condition of which Richard admitted that he was aware. Further, Richard admitted that it is n o t his practice to read warning labels. Rashti also maintains that the claims for negligence and breach of an implied warranty must be dismissed as they a r e subsumed by the strict liability claims and, since there was no design defect, these claims cannot be maintained. Lastly, Rashti asserts that plaintiffs are not entitled to punitive damages. In opposition to the instant motion, plaintiffs contend that there are material questions of fact regarding the i s s u e of the design of the blanket so as to preclude summary judgment, as well as questions regarding negligence and breach of an implied warranty. Plaintiffs also assert t h a t their ability to claim punitive damages is a question that should be left up to a jury, based on the facts presented at trial. In support of their position that the blanket was defectively designed, plaintiffs provide the affidavit of Christopher W. Lautenberger (Lautenberger), a professional fire 5 [* 7] protection engineer licensed by the State of California, who averred that: (1) compliance with the tests enumerated by Cantor has little correlation with real-world fire hazards, since a l m o s t all textiles readily pass these t e s t s ; (2) that, because the blanket was intended to be used by infants, compliance w i t h children's sleepwear standards would be more appropriate, and acrylic fabrics, such as the one used by R a s h t i , rarely p a s s these tests; (3) acrylic is one of t h e most flammable materials from which a child's blanket c o u l d be manufactured; and (4) children's blankets can be manufactured with less flammable textiles than acrylic, such as wool or silk. Lautenberger opined that: "It i s my opinion t h a t David Trotter's b u r n injuries would have been prevented, or reduced greatly in severity, if the shawl [blanket] he was covered with was manufactured from wool or silk." Opp., Ex. 2. Lautenberger a l s o stated that another potential fabric for blanket manufacture, which is less expensive than wool or silk, is 100% polyester, which would have propagated flame very slowly or self-extinguished, and that polyester f a b r i c s usually pass the children's sleepwear flammability t e s t . In reply, Rashti maintains that the blanket was not improperly designed and was safe for its intended use. Rashti also challenges Lautenberger's opinion that t h e r e are alternative fabrics available that would have been safer, but the c o u r t notes that this challenge is only made by Rashti's attorney in his 6 [* 8] affirmation. Otherwise, Rashti reiterates its arguments presented in its motion papers. DISCUSSION Both parties agree that, at least for the purposes of this motion, Texas law applies to all of the substantive issues presented by the alleged causes of action, but that New York law controls the applicable standard for determining motions for summary judgment. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and Santiago v F i l s t e i n , 35 AD3d 184, 185-186 citation omitted] .'I (13t Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of A r t , 27 A D 3 d 2 2 7 , 228 ( l S t Dept 2006); see Zuckerrnan v City of New York, 49 NY2d 557, 562 (1980). If t h e r e is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied, See Rotuba Extruders, I n c . v Ceppos, 4 6 NY2d 223, 231 (1978). Section 82.001 of the Texas Civil Practice and Remedies Code defines a "products liability action" as: "[Alny action against a manufacturer or seller f o r recovery of damages arising out of personal injury, 7 [* 9] death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination or theories." "A product may be unreasonably dangerous because of a defect in manufacturing, design, or marketing. A defendant's failure to warn of a product's potential dangers when warnings are required is a type of marketing defect. Liability will attach if the lack of adequate warnings os instructions renders an otherwise adequate product unreasonably dangerous. [Tlhere is no duty to warn when the r i s k s associated with a particular product are matters 'within the ordinary knowledge common to the community.' . . . In these circumstances, a warning is n o t required. Thus, the duty to warn is limited in scope, and applies o n l y to hazards of which the consumer is unaware [internal citations omitted] " Caterpillar, Inc. v Shears, 911 SW2d 379, 3 8 2 (Tex 1995); S h a w v T r i n i t y H i g h w a y Products, LLC, 329 SW3d 914 (Ct App, Dallas, Tex 2010). All of the evidence presented, including Richard's own testimony, substantiate Rashti's contentions that a warning label was not necessary f o r the baby blanket. Not only is it common knowledge that consumers know that fabrics may catch fire and burn, but Richard himself testified that he was aware of this potential danger associated with fabrics. Moreover, competent evidence demonstrates that such warnings are not typically placed on fabrics. Hence, plaintiffs cannot maintain a cause of action for strict products liability based on a marketing defect. "TO recover for a products liability claim alleging a 8 [* 10] design defect, a plaintiff must prove that (1) the product was defectively designed so as to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect was a producing cause of the injury f o r which plaintiff seeks recovery. To determine whether a product was defectively designed so as to render it unreasonably dangerous, Texas courts have long applied a risk-utility analysis that requires consideration of the following factors: (1) the utility of the product to the u s e r and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and (5) the expectations of the ordinary consumer." T i m p t e I n d u s t r i e s , Inc. v Gish, 286 SW3d 306, 311 (Tex 2009) [internal citations omitted] ; Champion v Great Dane Limited P a r t n e r s h i p , 2 8 6 SW3d 5 3 3 (Ct App, 14th Dist, Tex 2009). "A 'safer alternative design' is: a product design other than the one actually used that in reasonable probability: (1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and (2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge." Damian v B e l l Helicopter T e x t r o n , Inc., 3 5 2 SW3d 124, 145 (Ct App, Fort Worth, Tex 2011). 9 [* 11] In the case at bar, the parties have presented conflicting affidavits of industry experts who disagree on whether alternative fabrics would have eliminated or reduced the r i s k of the blanket contributing to David's injuries. Further, evidence has been provided indicating that substitute fabrics would not necessarily have increased Rashti's costs, and that such alternative fabrics are commonly used in the design and manufacture of infant's garments because of their flame retardant qualities. In a products liability action based on a design defect, summary judgment is unwarranted when conflicting expert affidavits are presented that raise questions of fact as to whether the product was defectively designed based on the availability of feasible alternative designs. Sugrim v Ryobi T e c h n o l o g i e s , Inc., 73 AD3d 904 (2d Dept 2010); Cwiklinski v S e a r s , Roebuck & Co., Inc., 70 AD3d 1477 ( 4 t h Dept 2010). In addition, there are questions of fact as to whether Richard leaving David alone and unattended next to a lit candle was the cause, or a significant contributing factor, of the accident. Based on the foregoing, that portion of Rashti's motion seeking summary judgment on its cause of action based on strict products liability is denied. 10 [* 12] That portion of Rashti's motion seeking summary judgment on its causes of action based on negligence and breach of an implied warranty are a l s o denied. The o n l y argument posited by Rashti on these issues is that these causes of action a r e subsumed in the products liability cause of action and, since there was no design or marketing defect, these claims must be dismissed. See T o s h i b a I n t e r n a t i o n a l Corp. v Henry, 1 5 2 SW3d 7 7 4 (Ct App, T e x a r k a n a , Tex 2004); see also Ford Motor Company v Miles, 141 SW3d 309 (Ct App, Dallas, Tex 2004). However, since this court has determined that questions of fact exist as to whether the blanket was properly designed, these c a u s e s of action cannot be dismissed at this time. Lastly, the question as to whether plaintiffs are entitled to punitive damages cannot be determined at this juncture, since a claim for punitive damages is inextricably linked to the underlying causes of a'ction, which cannot be decided in this motion. Rocanova v E q u i t a b l e L i f e Assurance Society of U . S . , 83 NY2d 603 (1994); see Miles v F o r d Motor Co., 2001 Tex App Lexis 4405 (Ct App, D a l l a s , Tex 2 0 0 1 ) . 11 [* 13] CONCLUSION Based on t h e f o r e g o i n g , i t i s h e r e b y ORDERED t h a t defendant's motion f o r summary judgment i s denied. FILED Dated: ENTER : n TY CLERKS OFFICE NEW YQRK LOUn R YORK 1 12 7,i.l.C. . _.

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