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Olsovi v. DeBarney

Appellate Division of the Supreme Court of New York, Second Department
Mar 31, 1986
118 A.D.2d 839 (N.Y. App. Div. 1986)

Summary

stating that "plaintiff must demonstrate, at a minimum, that her injuries are the direct result of the product" and that the product was "the sole possible cause" of her injuries

Summary of this case from Gilks v. Olay Co.

Opinion

March 31, 1986

Appeal from the Supreme Court, Kings County (Pino, J.).


Order reversed, on the law, with costs, and motion denied.

The plaintiff allegedly suffered a loss of hair as a result of the application of a mixture of two different color hair dyes and peroxide to her hair by the owner of the defendant beauty salon during a hair dye treatment. The defendant's owner threw away the bottles of hair dye and did not recall the exact nature of the mixture applied to the plaintiff's hair. The plaintiff seeks recovery for her injuries on the grounds of negligence and strict liability. Special Term granted the plaintiff's motion for partial summary judgment on the issue of liability with respect to her strict liability cause of action. We reverse.

While there is no question that strict liability for injury due to a defective product may be imposed on a beauty parlor operator (see, Jerry v. Borden Co., 45 A.D.2d 344; Newmark v. Gimbel's, Inc., 54 N.J. 585, 258 A.2d 697), the injured party, in order to prevail under that theory, must prove, inter alia, that the allegedly defective product was the cause of the injuries sustained (see, Jerry v. Borden Co., supra, p 348; Elliott v Lachance, 109 N.H. 481, 256 A.2d 153, 156). "The cornerstone rule in products liability is that proof of mere injury furnishes no rational basis for inferring that the product was defective for its intended use" (Helene Curtis Indus. v. Pruitt, 385 F.2d 841, 853, cert denied 391 U.S. 913). The plaintiff must demonstrate, at a minimum, that her injuries are the direct result of the products applied to her hair, and that those products are the sole possible cause of those injuries (see, Cahill v. Inecto, Inc., 208 App. Div. 191, 194; McGuiness v. Roux Distrib. Co., 19 Misc.2d 956). The plaintiff has presented insufficient proof on this motion for partial summary judgment, and thus, it is a question for a jury whether the allegedly defective products were the cause of her injuries (see, Freeman v. Zirger, 125 Misc. 288). Unless the plaintiff can present actual proof that the proximate cause of her injuries was the application of those products and also establish that fact to the reasonable exclusion of all other possible causes, strict tort liability will not be imposed on the defendant (see, Ravo v. Lido, 17 A.D.2d 476, 482, amended 18 A.D.2d 1022). She must come forward with "competent professional testimony" (McGuiness v. Roux Distrib. Co., supra) which may include, but is not limited to the testimony of a dermatologist (see, Newmark v. Gimbel's, Inc., 54 N.J. 585, supra; Stahlberg v. Moe, 283 Minn. 78, 166 N.W.2d 340); beautician (Katz v. Employees Group, 204 So.2d 695 [La App]); licensed cosmetologist (Coons v. Farrell, 437 S.W.2d 674 [Mo App]); chemist (Cahill v. Inecto, Inc., supra; Helene Curtis Indus. v. Pruitt, supra); and the plaintiff's personal physician (Ravo v. Lido, supra; Cahill v. Inecto, Inc., supra). That the physical evidence no longer exists and the defendant's owner does not recall the exact nature of the mixture, while clearly not helpful to the plaintiff's strict liability cause of action, should not, in and of themselves, be dispositive. The defendant's owner knew the manufacturer's formula numbers of the hair dye bottles that she discarded. It is possible that experiments can be conducted on the same types of dyes to ascertain their active ingredients, as well as on mixtures of those dyes and peroxide, even though the specific products that were used are unavailable (cf. Helene Curtis Indus. v. Pruitt, supra, p 853, n 9). Mangano, J.P., Bracken, Weinstein, Lawrence and Kooper, JJ., concur.


Summaries of

Olsovi v. DeBarney

Appellate Division of the Supreme Court of New York, Second Department
Mar 31, 1986
118 A.D.2d 839 (N.Y. App. Div. 1986)

stating that "plaintiff must demonstrate, at a minimum, that her injuries are the direct result of the product" and that the product was "the sole possible cause" of her injuries

Summary of this case from Gilks v. Olay Co.
Case details for

Olsovi v. DeBarney

Case Details

Full title:ELEANOR OLSOVI, Respondent, v. SALON DeBARNEY, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 31, 1986

Citations

118 A.D.2d 839 (N.Y. App. Div. 1986)

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