Opinion
INDEX No. 08-2610 CAL. No. 12-01786OT
07-10-2013
CRYSTAL MENNA by her parent and natural guardian, SUSAN MENNA and SUSAN MENNA, Individually, Plaintiffs, v. WALMART, Defendant.
GRUENBERG KELLY DELLA Attorney for Plaintiffs HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorney for Defendant
SHORT FORM ORDER PRESENT:
Hon.
Justice of the Supreme Court
MOTION DATE 2-13-13
ADJ. DATE 4-9-13
Mot. Seq. # 003 - MotD
GRUENBERG KELLY DELLA
Attorney for Plaintiffs
HOEY, KING, EPSTEIN, PREZIOSO &
MARQUEZ
Attorney for Defendant
Upon the following papers numbered 1 to 18 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 12; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers 13 - 15; Replying Affidavits and supporting papers 16 - 18; Other ___; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the defendant's motion for an order pursuant to CPLR 3212, granting summary judgment dismissing the complaint, is granted to the extent of dismissing the first cause of action in its entirety and dismissing so much of the second and third causes of action as are based on defective manufacture and failure to warn, and is otherwise denied.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff ("the plaintiff") on July 6, 2006 when she tripped over her feet and fell. According to the plaintiff, the metal fasteners on the inside of her jeans, which held decorative rhinestones in place on her jeans, cut her knee when she fell. Her mother purchased the subject jeans from Walmart.
In the complaint, the plaintiffs assert four causes of action. The first cause of action is for breach of express and implied warranties, the second cause of action is for strict products liability, the third cause of action is for negligent manufacture and production, and the fourth cause of action is for loss of consortium.
The defendant now moves for summary judgment dismissing the complaint.
Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]; Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact ( Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 925 [1986]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316, 318 [1985]). Further, the credibility of the parties is not an appropriate consideration for the Court ( S.J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment ( Benincasa v Garrubbo, 141 AD2d 636, 637, 529 NYS2d 797, 799 [2d Dept 1988]). Once a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., supra).
A manufacturer who places a defective product into the stream of commerce may be liable for injuries or damages caused by such product (see Sprung v MTR Ravensburg, Inc., 99 NY2d 468, 758 NYS2d 271 [2003]; Gebo v Black Clawson, 92 NY2d 387, 681 NYS2d 221 [1998]; Liriano v Hobart Corp., 92 NY2d 232, 677 NYS2d 764 [1998]). A product may be defective due to a mistake in the manufacturing process, an improper design or a failure to provide adequate warnings regarding its use ( Gebo v Black Clawson, supra; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 463 NYS2d 398 [1983]). Depending upon the factual circumstances, a person injured by a defective product may maintain causes of action under theories of strict products liability, negligence or breach of warranty (see Voss v Black & Decker Mfg. Co., supra). Whether an action is pleaded in strict products liability, negligence or breach of warranty, the plaintiff has the burden of establishing that a defect in the product was a substantial factor in causing the injury, and that the defect existed at the time the product left the manufacturer or other entity in the chain of distribution being sued (see Beckford v Pantresse, Inc., 51 AD3d 958, 858 NYS2d 794 [2d Dept 2008]; Clarke v Helene Curtis, Inc., 293 AD2d 701, 742 NYS2d 325 [2d Dept 2002]).
A defectively designed product is one 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 (see Voss v Black & Decker Mfg. Co., supra; Robinson v Reed-Prentice Div. of Package Much. Co., 49 NY2d 471, 426 NYS2d 717 [1980]; Bombara v Rogers Bros. Corp., 289 AD2d 356, 734 NYS2d 617 [2001]). Stated differently, a defective product is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce (see Denny v Ford Motor Co., 87 NY2d 248, 639 NYS2d 250 [1995]; Robinson v Reed-Prentice Div., supra). To establish a strict liability claim based on a defective design, a plaintiff must show the product as designed posed a substantial likelihood of harm, that it was feasible for the manufacturer to design the product in a safe manner, and that the defective design was a substantial factor in causing the plaintiff's injury (see Voss v Black & Decker Mfg. Co., supra; Gonzalez v Delta Intl. Mach. Corp., 307 AD2d 1020, 763 NYS2d 844 [2003]; Ramirez v Sears, Roebuck & Co., 286 AD2d 428, 729 NYS2d 503 [2001]). It is well settled that distributors of defective products, as well as retailers and manufacturers, are subject to strict products liability (see Michael v General Tire, Inc., 297 AD2d 629, 747 NYS2d 40 [2d Dept 2002]; Joseph v Yenklin Majestic Paint Corp. , 261 AD2d 512,690 NYS2d 611 [2d Dept 1999]; Harrigan v Super Prods. Corp., 237 AD2d 882, 654 NYS2d 503 [4th Dept 1997]). Strict products liability extends to retailers and distributors in the chain of distribution even if they "never inspected, controlled, installed or serviced the product" ( Fernandez v Riverdale Terrace, 63 AD3d 555, 556, 882 NYS2d 50 [1st Dept 2009]).
As to a claim of strict liability based on the failure to provide adequate warnings, a manufacturer may be held liable for the failure to warn of the latent dangers resulting from the foreseeable uses of its product which it knew or should have known (see Liriano v Hobart Co., supra; Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 582 NYS2d 373 [1992]). Liability may be based on either the complete failure to warn of a particular hazard or the inclusion of warnings that are inadequate (see DiMura v City of Albany, 239 AD2d 828, 657 NYS2d 844 [3d Dept 1997]; Johnson v Johnson Chem. Co., 183 AD2d 64, 588 NYS2d 607 [2d Dept 1992]). However, a manufacturer has no duty to warn product users of dangers that are obvious, readily discernable or apparent (see Martino v Sullivan's of Liberty, 282 AD2d 505, 722 NYS2d 884 [2d Dept 2001]; Pigliavento v Tyler Equip. Corp., 248 AD2d 840, 669 NYS2d 747 [3d Dept 1998]; Lonigro v TDC Elec., 215 AD2d 534, 627 NYS2d 695 [2d Dept 1995]). The duty to warn of a specific hazard also does not arise if the injured person, through common knowledge or experience, already is aware of such hazard (see Warlikowski v Burger King, 9 AD3d 360, 780 NYS2d 608 [2d Dept 2004]; Banks v Makita, U.S.A., 226 AD2d 659, 641 NYS2d 875 [2d Dept 1996]). A plaintiff asserting a cause of action alleging a failure to warn must adduce proof that he or she "would have read and heeded a warning had one been given" ( Sosna v American Home Prods., 298 AD2d 158, 158, 748 NYS2d 548, 549 [1st Dept 2002]).
Here, the defendant established its prima facie entitlement to summary judgment with respect to those portions of the plaintiff's second and third causes of action as are based on failure to warn by demonstrating that there is no evidence that any such failure to warn of the alleged defective jeans was the proximate cause of the plaintiff's injuries (see Reis v Volvo Cars of N. Am., Inc., 73 AD3d 420, 901 NYS2d 10 [1st Dept 2010]). Specifically, there is no proof that the plaintiff would have read and heeded a warning about any risk of injuring herself by running and falling down while wearing the jeans (id.). Therefore, the court finds that any purported absence of a warning was not a substantial factor in bringing about the injury.
In opposition, the plaintiff failed to raise a triable issue of fact with respect to those portions of the plaintiff's second and third causes of action (see Alvarez v Prospect Hosp., supra).While the plaintiffs assert that their deposition transcripts as well as the deposition transcripts of Peggy Foller and Andrea Albright, witnesses for the defendant, should not be considered since they were not signed and the defendant failed to establish that it had forwarded the transcripts to them for their signature, the defendant annexed to its reply papers copies of letters to the plaintiffs' attorney and to Andrea Albright indicating that it had forwarded the transcripts Andrea Albright and the plaintiffs' attorney and requested that the Ms. Albright and the plaintiffs sign and return the deposition transcripts. Further, with respect to both Ms. Albright's and Ms. Foller's deposition transcripts, since those transcripts were submitted by the party deponent itself, they were adopted as accurate by the deponent and were therefore admissible (see David v Chong Sung Lee, 106 AD3d 1044, ___ NYS2d ___ [2d Dept 2013]). In addition, although the plaintiffs' transcripts are unsigned, since the plaintiffs have not raised any challenges to the accuracy of their deposition transcripts, they qualify as admissible evidence for purposes of the motion for summary judgment made by the defendant (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 937 NYS2d 602 [2d Dept 2012]). In light of the foregoing, those portions of the plaintiff's second and third causes of action are dismissed.
In addition, the defendant established its prima facie entitlement to judgment as a matter of law dismissing so much of the plaintiff's second and third causes of action as are based on defective manufacture by establishing, through the affidavit and deposition testimony of Andrea Albright, an assistant buyer for Walmart, and the deposition testimony of Peggy Foller, the senior director for product safety and compliance at Walmart, that the jeans were not defective; specifically that they were subjected to extensive independent inspection and testing prior to being marketed to Walmart, and that none of the test results reported any problems with the jeans (see Wallace v STIMA U.S.A., 77 AD3d 918, 910 NYS2d 136 [2d Dept 2010]; Mincieli v Pequa Indus., Inc., 56 AD3d 627, 867 NYS2d 535 [2d Dept 2008]). The defendants further established that the plaintiff's injuries were not proximately caused by any defect but, rather, by the plaintiff's own act of tripping over her own feet and falling. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., supra).
The defendant also established its entitlement to judgment as a matter of law dismissing the causes of action for breach of warranty. With respect to the claim for breach of express warranty, the defendants are entitled to judgment as a matter of law since the plaintiff failed to set forth the terms of the warranty upon which she relied (see Parker v Raymond Corp., 87 AD3d 1115, 930 NYS2d 27 [2d Dept 2011]). As to the plaintiff's claim for breach of implied warranty, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating, through the affidavit and deposition testimony of Andrea Albright and the deposition testimony of Peggy Foller, that the jeans were fit for the ordinary purpose for which they were intended(see Pai v Springs Indus., Inc., 18 AD3d 529, 795 NYS2d 98 [2d Dept 2005]). In opposition, the plaintiff failed to raise a triable issue of fact.
However, the defendants failed to establish their entitlement to summary judgment dismissing the plaintiff's second and third causes of action insofar as they are based on a theory of defective design. In order to prevail on a motion for summary judgment to dismiss a cause of action for design defect, a defendant must show that the product's "utility outweighs its inherent danger and . . . demonstrat[e] through expert testimony that it was not feasible to design a safer, similarly effective and reasonably priced alternative product" ( Yun Tung Chow v Reckitt & Colman, Inc., 17 NY3d 29, 34, 926 NYS2d 377, 381 [2011]). Here, the defendants have not submitted an affidavit from an expert or any other evidence to that effect. Moreover, Ms. Albright testified at her deposition that rhinestones and other decorations can be affixed to a pair of jeans by using a heat seal instead of a metal fastener located on the inside of the jeans.
Accordingly, the defendant's motion for summary judgment is granted only to the extent of dismissing the first cause of action in its entirely and so much of the second and third causes of action as are based on defective manufacture and failure to warn; in all other respects, the motion is denied.
The Court directs that the causes of action as to which summary judgment was granted are hereby severed and that the remaining causes of action shall continue (see CPLR 3212 [e] [1]).
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J.S.C.