Faherty v Birchwood Lodge, Inc.

[*1] Faherty v Birchwood Lodge, Inc. 2012 NY Slip Op 51046(U) Decided on June 13, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2012
Supreme Court, Queens County

James Richard Faherty, an infant by his Father and Natural Guardian, JAMES FAHERTY Birchwood Lodge, Inc. d/b/a YOGI BEAR'S JELLYSTONE PARK AT BIRCHWOOD ACRES and MIRACLE RECREATION EQUIPMENT COMPANY and PETTINELLI & ASSOCIATES



32324/2009



For the Plaintiff: Zemsky & Salomon, P.C., 95 Front Street, Hempstead, New York 11550

For the Defendant Pettinelli & Associates and Defendant/Third-Party Plaintiff Miracle Recreation Equipment Co. s/h/a Miracle Recreation Equipment Company: Montfort, Healy, McGuire & Salley, by Michael A. Baranowicz, 840 Franklin Ave., Garden City, New York 11530-7677

For the Defendant Birchwood Lodge, Inc. d/b/a Yogi Bear's Jellystone Park at Birchwood Acres: Knych & Whritenour, LLC, by Peter W. Knych, Esq., 300 South State Street, Syracuse, New York 13202

For the Third-Party Defendants Peerless Chain Company and Peerless Industrial Group, Inc.: Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, by Rosario M. Vignali, Esq., 3 Gannett Drive, White Plains, New York 10604

Charles J. Markey, J.

Notice of Motion - Affidavits - Exhibits............................................................1 - 4

Answering Affidavits - Exhibits.........................................................................5 - 7

Reply Affidavits...............................................................................................8 - 10

For generations, the outdoor swing has amused children. The case law in the nation, to the best of this Court's independent legal research, has only one reported case regarding a baby swing (Tober v Graco Children's Products, Inc., 431 F3d 572 [7th Cir. 2005]), but none regarding the outdoor swing.

This action arises from an accident on June 28, 2009, when infant James Richard Faherty, then ten years old, sustained the amputation of two fingertips when he jumped from a swing at Birchwood Lodge, "Yogi Bear's Jellystone Park," located in Greenfield Park, in Ulster County, New York. The infant plaintiff's fingers became caught in the chain of the swing as he was holding on to it. Plaintiff alleges that the swing set was dangerous, in part, because the chain supporting the swing was improperly-sized and harbored a "trap" to small children's fingers and because a covering over the chain was not provided.

Plaintiff commenced this action against Birchwood Lodge, Inc, in its capacity as the owner of the site where the accident occurred and of the playground equipment. Plaintiff also named as defendants Miracle Recreation Equipment Co. ("Miracle"), and Pettinelli & Associates ("Pettinelli"), the manufacturer and installer, respectively, of the playground equipment involved in the accident. Miracle then initiated a third-party claim against Peerless in its capacity as the supplier of the bulk chain utilized by Miracle in manufacturing the playground equipment.

Peerless Chain Company, Inc., Peerless Industrial Group, and Peerless Industrial Group Inc. (herein collectively referred to as "Peerless"or "the Peerless defendants"), move for summary judgment, pursuant to CPLR 3212, dismissing the complaint. Peerless moves for summary judgment on essentially two grounds: (1) as a component part manufacturer, Peerless is not liable for the defective design of Miracle's playground equipment; and (2) Peerless acted as a "bulk supplier" of raw chain to Miracle and thus Peerless had no duty to warn as Miracle was a "sophisticated" and "knowledgeable" user of the raw chain. Plaintiff opposes the motion. [*2]

THE FACTS

Plaintiff alleges that the Miracle-supplied playground equipment was defectively-designed because the swing set's chain was "too small" and contained a "trap which a child's finger could get caught inside" and because the chain "failed to provide sheathing over the swing chain". Thus, plaintiff is alleging that covered (sheathed) chain or PVC-covered chain could have eliminated, or at least reduced the possibility of snaring small fingers.

Peerless is in the business of manufacturing standard chain in bulk quantities as well as "OEM" (other equipment manufacturer) chains, and was the "bulk supplier" of raw chain to Miracle. Miracle is a manufacturer of commercial-type playground equipment.

Peerless' Quality Manager, Gary Lind, testified on behalf of Peerless, at the examination before trial, as follows: Peerless has been in business since 1917, manufacturing standard chain in bulk quantities. Peerless also manufactures "OEM" (other equipment manufacturer) chain pursuant to particular, and specialized requirements received from the customer. The chain involved in this accident was "4/0 straight coil" chain. The designation "4/0 straight coil" refers to the actual geometry and shape of the link as well as the thickness of the "wire" used. The "4/0 Straight Coil" type chain was manufactured by Peerless and supplied to Miracle in the early-to-mid 2000s when the subject playground equipment was manufactured. Lind's inspection at the Birchwood facility revealed no fractured links or other nonconformities in the chains' links.

The 4/0 Straight Link chain is a welded chain that can be used in a variety of industrial applications, including farming and boating. In the playground equipment industry, it can be used for swings, ladders, railing, bridges, hanging tires, etc. In fact, during his inspection, Lind saw that Miracle had used chain throughout the construction of the subject playground equipment, including various bridges, railings and rungs. Lind acknowledged, during his examination before trial, that Peerless, in its catalog for Consumer Products Group for the years 2004-2007 on page 5 thereof, represented to the general public and prospective customers that its welded chain, and specifically straight link coil chain was fit for swing sets.

During the relevant time period of 2006 and 2007, Lind testified, Miracle purchased from Peerless the subject 4/0 straight link chain on an "OEM" basis. The orders from Miracle were considered to be "OEM" because Miracle requested at least two special features in the various orders: mechanical plating finishing (known as "silver shield", which enhances corrosion resistance), and the quantity of chain to be contained in each drum. Peerless did not make any recommendation to Miracle regarding what type of chain Miracle should use in designing and manufacturing its (Miracle's) equipment. To the contrary, Miracle told Peerless what kind of chain it intended to purchase.

Lind further testified that from time to time, and only pursuant to customer request, Peerless has manufactured on an OEM basis so-called "coated" 4/0 straight link coil chain. This is chain that is encapsulated (by a third-party at Peerless' request), in a relatively thick coating of [*3]polyvinylchloride (PVC). The net result of the PVC coating would be to significantly decrease the inner diameter of each individual link of the chain (presumably to avoid the catching of small fingers). Miracle has never ordered PVC-coated chain from Peerless. Instead, at least up to the period of the early 2000s, Miracle was known to have applied PVC-coating to chain on its own. Also, pursuant to customer request, Peerless has manufactured, on an OEM basis, 4/0 straight link coil chain that is covered by plastic sheathing. During the period of 2004 - 2007, Peerless allegedly would have and could have supplied PVC-coated and/or plastic sheathed chain to Miracle, if Miracle had ordered that kind of chain product.

Steven Adkins, a design engineer with over 30 years of experience with Miracle, testified on behalf of Miracle as follows: Miracle manufactures commercial-type playground equipment, as the witness described: "the stuff you see at parks and schools." Miracle, in fact, is an "expert" in the field of playground equipment. In the 2005 - 2007 period, Peerless was the exclusive supplier of chain utilized by Miracle in manufacturing the playground equipment, including the straight link coil chain used for the swings. Miracle produced sales catalogs that were used by its sales force, including Pettinelli & Associates, to assist in the sale of Miracle's products.

Pages 128 and 129 of the 2005 catalog show that Miracle was selling "Tensile Tough Coated chain" for use with its swings. "Tensile Tough Coated chain" refers to chain that is encased in a plastic sheath or "coat."

Adkins gave substantially the same testimony with regard to the 2006 and 2007 catalog. The plastic sheathing on the chain covers approximately 24 to 30 inches of the swing chain. Miracle first offered plastic-sheathed chain to its customers throughout the 2005 - 2007 time period. Once Miracle began offering plastic-sheathed chain in or about 2004, "Champion" was the exclusive supplier of plastic-sheathed chain to Miracle through 2007, including the "4/0 straight link chain" that forms the basis of this lawsuit. Chain with no plastic sheathing was supplied during this period exclusively by Peerless.

Before beginning to offer the plastic-sheathed chain in or about 2004, Miracle offered for sale chain encased in a relatively thick coating of PVC. One result of coating the chain with PVC was a "fatter" look to the individual links and a smaller inside diameter of the individual links. Miracle switched over to plastic-sheathed chain when the practice of coating its chain with PVC stopped. Plastic-sheathed chain was, and remained, an option available to Miracle's customers during the 2005 - 2007 time period.

A Miracle customer could get chain with, or without, the plastic sheathing but it was not Miracle's general practice to make a recommendation to the customer either way. If a customer chose the option of buying plastic-sheathed chain, Miracle would simply obtain a supply of it from Champion, Miracle's exclusive supplier. If a customer simply wanted and ordered "naked" chain, then Miracle would obtain a supply of naked chain from Peerless. Peerless never supplied plastic-sheathed chain to Miracle. [*4]

DISCUSSION

New York recognizes that 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]). Liability is recognized either under a negligence theory (Smith v Peerless Glass Co., 259 NY 292 [1932]) or under a theory of strict products liability (see, Yates v Dow Chem. Co., 68 AD2d 907 [2nd Dept. 1979]; Clark v Bendix Corp., 42 AD2d 727 [2nd Dept. 1973]; cf., Goldberg v Kollsman Instrument Corp., 12 NY2d 432 [1963]; Codling v Paglia, 32 NY2d 330 [1973]; see also, 1 Weinberger, New York Products Liability § 5:05).

Under the doctrine of strict products liability the manufacturer of a product is under a nondelegable duty to produce a defect-free product. Liability is imposed irrespective of fault. "[The] scienter that is so vital to the negligence suit need not be shown" (Caprara v Chrysler Corp., 52 NY2d 114, 123 [1981]). All that is required is that the product be found defective (Codling v Paglia, 32 NY2d 330, supra). If a defect is found to exist, the manufacturer of the defective product may be found liable to a remote user who was injured by the defective product notwithstanding the user's lack of privity with the manufacturer, provided, however, that the defect was a substantial factor in causing the injury (Codling v Paglia, supra,. Liability extends not only to those who manufacture the defective product, but also to any party in the direct distributive chain. Manufacturers, distributors, retailers, and makers of component parts of the defective product can thus be found liable (see, Cover v Cohen, 61 NY2d 261 [1984]; Mead v Warner Pruyn Div., Finch Pruyn Sales, Inc., 57 AD2d 340 [3rd Dept. 1977]).

As Justice Dianne T. Renwick [now Justice of the Appellate Division, First Judicial Department], elegantly summarized the law, in Perez v Radar Realty, 97 Misc 3d 1015(A), 2005 WL 946710, 2005 NY Slip Op 50599(U) [Sup Ct Bronx County 2005], stating:

. . . . As the law of strict products liability has developed, a defective product may consist of:

(1) a mistake in manufacturing (i.e., a "flaw") see, Codling v Paglia, 32 NY2d 330;

(2) an improper design (a "design defect") see, Micallef v Miehle Co., Div. of Miehle—Goss Dexter, Inc., 39 NY2d 376, 384—387 [1976]; Bolm v Triumph Corp., 33 NY2d 151 [1973], or

(3) an inadequate or absent warning for the use of the product see, Torrogrossa v Towmotor Co., 44 NY2d 709 [1978]; Wolfgruber v Upjohn Co., 72 AD2d 59 [4th Dept. 1979], aff'd, 52 NY2d 768 [1980]; Robinson v Reed—Prentice Div. of Package Machinery Co., 49 NY2d 471, 478—479 [1980]. In this case, the plaintiff relies upon the theories of design defect and inadequate warnings.

Perez v Radar Realty, 97 Misc 3d 1015(A), 2005 WL 946710, 2005 NY Slip Op 50599(U), slip [*5]op. at 1, supra.

As an initial matter, questions of design defect and failure to warn generally present factual issues best resolved by a jury (see, e.g., Pierre—Louis v DeLonghi America, Inc., 66 AD3d 859, 861—62 [2d Dept. 2009]; Johnson v Delta Intl. Machinery Corp., 60 AD3d 1307, 1308—1309 [4th Dept. 2009]; Polimeni v Minolta Corp., 27 AD2d 64 [3rd Dept. 1997]; see also, Bingham v Louco Realty, LLC, 36 AD3d 845, 846 [2d Dept. 2007]; Craft v Mid Island Dept. Stores, Inc., 112 AD2d 969, 971 [2d Dept. 1985]).

In any event, a defectively designed product is one in which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use. Robinson v Reed—Prentice Div. of Package Machinery Co., 49 NY2d at 479, supra; see also, Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109—110 [1983]; Bombara v Rogers Bros., 289 AD2d 356 [2nd Dept. 2001]. Whether a product is defectively designed is determined by examining the industry standards in effect when it was manufactured (see, Lamb v Kysor Indus. Corp., 305 AD2d 1083, 1084 [4th Dept. 2003]; Steinbarth v Otis El. Co., 269 AD2d 751, 752 [4th Dept. 2000]). Thus, to establish a prima facie case in strict products liability for design defects, a plaintiff must show that the manufacturer marketed a product that was not reasonably safe in its design, that it was feasible to design the product in a safer manner, and that the defective design was a substantial factor in causing the plaintiff's injury (see Gonzalez v Delta Intl. Mach. Corp., 307 AD2d 1020, 1021 [2003]; see also, Voss v Black & Decker Mfg. Co., 59 NY2d at 107, supra).

As the New York Court of Appeals stated:

[T]he proper standard to be applied should be whether the product as designed was not reasonably safe' - - that is, whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk in marketing a product designed in that manner.

(Voss v Black & Decker Mfg. Co., 59 NY2d at 108, supra).

Here, Peerless "failed to meet their initial burden of establishing that there was no defect in the design of the [raw chain]' " (Sapp v Niagara Mach. & Tool Works, 45 AD3d 1261, 1263 [4th Dept. 2007]), inasmuch as the Peerless defendants failed to submit any evidence that the raw chain "met all applicable industry standards for safety and was reasonably safe for its intended use when it was manufactured" (Gian v Cincinnati Inc., 17 AD3d 1014, 1016 [2005]; cf. Wesp v Carl Zeiss, Inc., 11 AD3d 965, 967 [4th Dept. 2004]). The unsupported assertion by Peerless' counsel that its raw chain did not contain an inherent defect and was reasonably safe for its intended use does not make out a prima facie showing of entitlement to summary judgment (see, Yun Tung Chow v Reckitt & Colman, Inc., 17 NY3d 29 [2011]. Thus, the burden never shifted to plaintiff to raise a triable issue of fact with respect to the alleged defect in the raw chain (see generally, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). [*6]

The Court next examines the branch of the motion by Peerless which is for a dismissal of the claims based upon the theory of failure to warn or inadequate warnings. Plaintiff argues that Peerless is liable for product liability based upon its failure to warn about the use of raw chain in building playground equipment. Peerless argues that it met its duty to warn under the "bulk supplier doctrine" because Miracle is a "sophisticated," "knowledgeable" - - and, hence, "informed" - - user.

It has long been the rule that a plaintiff may recover in strict products liability for a manufacturer's failure to warn of the risks and dangers associated with the use of its product (see, Bukowski v CooperVision Inc., 185 AD2d 31 [3rd Dept. 1993]). That duty generally extends to warning ultimate consumers of the dangers resulting from the foreseeable use of the product (Bukowski v CooperVision Inc., 185 AD2d at 33, supra). The bulk supplier doctrine and the informed intermediary doctrine, however, were developed to impose practical limitations upon the manufacturer's obligation to appropriately warn the ultimate consumer (see, Marache v Akzo Nobel Coatings, Inc., 2010 WL 908467 [SDNY 2010] [Peck, M.J.]).

Thus, where a product, such as a gas or a liquid, is sold in bulk with the contemplation that such will be repackaged and resold by the manufacturer's distributee, the manufacturer will have satisfied its duty to act reasonably if it adequately warns the distributee of the risks and dangers associated with the use of its product (see, e.g., Donahue v Phillips Petroleum Co., 866 F2d 1008 [8th Cir. 1989]; Manning v Ashland Oil Co., 721 F2d 192 [7th Cir. 1983]; Groll v Shell Oil Co., 148 Cal App 3d 444, 196 Cal. Rptr. 52 [2nd Dist. 1983]; Jones v Hittle Serv., 219 Kan 627, 549 P2d 1383 [1976]). The bulk supplier doctrine is premised upon the theory that the immediate distributee is in a better position to warn the ultimate consumer of the dangers associated with the finished product and, further, that to require the bulk manufacturer to issue warnings through the entire chain of distribution would be too onerous a burden (see, Veil v Vitek, Inc., 803 F Supp 229 [D.N.D. 1992]; Groll v Shell Oil Co., 148 Cal App 3d 444, 196 Cal. Rptr. 52, supra).

A defense contention is that defendant had no duty to warn Miracle, a "knowledgeable" or "informed" user. The informed intermediary doctrine is similar to the bulk supplier doctrine in that it limits the duty to warn to the manufacturer's distributee and not the ultimate consumer. It is, however, based upon different policy considerations. In this State, at least, the informed intermediary doctrine has been limited to prescription drugs and certain medical devices. Unlike the bulk supplier doctrine, which is based upon the theory that the distributee is better situated to issue warnings, the theory behind the informed intermediary doctrine is that the warnings are specifically intended for the physician whose duty then is to balance the risks of the use of said drugs against the benefits that the patient may derive therefrom (see, Martin v Hacker, 83 NY2d 1 [1993]).

As a result of this distinction, the informed intermediary doctrine has not been extended to cases of purely commercial context (see, Donovan v Centerpulse Spine Tech Inc., 416 Fed. Appx. 104, 2011 WL 1086861 [2nd Cir. 2011] [physician as informed intermediary]; In re [*7]Oxycontin, 15 Misc 3d 388 [Sup Ct Richmond County 2007]).

This Court does not have to address the applicability of the bulk supplier doctrine and informed intermediary doctrine, since those issues are rendered moot by this Court's finding that plaintiff cannot establish that the absence of adequate warnings proximately caused his injuries (see, Perez v Radar Realty, 97 Misc 3d 1015(A), 2005 WL 946710, 2005 NY Slip Op 50599(U), slip op. at 1, supra; see also, Marache v Akzo Nobel Coatings, Inc., 2010 WL 908467, supra).

It is well settled that the manufacturer of a product cannot be held liable for failing to provide adequate warnings regarding the use of a product unless it is established that the manufacturer's failure to warn is the proximate cause of the plaintiff's injuries (Cramer v Toledo Scale Co., Inc., 158 AD2d 966 [4th Dept.1990]). Liability may be premised on the absence of warnings as to a particular hazard of their product or on the insufficiency of the warnings provided (Sosna v American Home Products, 298 AD2d 158 [1st Dept.2002]). To satisfy the causation element of a failure to warn claim, plaintiff must show that if adequate warnings had been provided, the product would not have been misused (see, Banks v Makita, U.S.A., Inc., 226 AD2d 659 [2nd Dept.1996]).

Accordingly, a claim of failure to warn must be dismissed where the plaintiff has made no showing of causation. Id. For instance, causation will be lacking where a manufacturer's warning would have been superfluous, given an injured party's actual knowledge of a specific hazard that caused the injuries or where a warning would have added nothing to the use or appreciation of the danger (see, Liriano v Hobart Corp, 92 NY2d 232, 241 [1998]).

In this case, the element of causation is missing from the claims of failure to warn and or inadequate warnings. The evidence adduced fails to establish that if adequate warnings had been provided, the swing would not have been misused (see, Banks v Makita USA, 226 AD2d 659, supra). To the contrary, the record reveals that the infant plaintiff was expressly warned by his father not to put his fingers in between the chain when using the swings. Accordingly, the claims of failure to warn or inadequate warnings with regard to the "naked" chain must be dismissed, absent proof that the absence of adequate warnings proximately caused plaintiff's injuries (cf. Sosna v American Home Products, 298 AD2d 158, supra; Guadalupe v Drackett Products Company, 253 AD2d 378 [1st Dept. 1998]).

CONCLUSION

The branch of the motion which is to dismiss the claims based upon a design defect, is denied. The branch of the motion which is to dismiss claims based upon a failure to warn or inadequate warnings, is granted.

The foregoing constitutes the decision, opinion, and order of the Court. [*8]

_______________________________

J.S.C.

Dated: June 13, 2012