"The adequacy of the instruction or warning is generally a question of fact to be determined at trial and is not ordinarily susceptible to the drastic remedy of summary judgment." Beyrle v. Finneron, 199 A.D.2d 1022, 1023, 606 N.Y.S.2d 465, 466 (4th Dep't 1993); Harrigan v. Super Products Corp., Dow Co., Inc., ___ A.D.2d ___, 654 N.Y.S.2d 503 (4th Dep't 1997). Biro failed to establish that it had no duty to warn or that the duty was discharged as a matter of law. Cf. Alessandrini v. Weyerhauser Co., 207 A.D.2d 996, 617 N.Y.S.2d 101 (4th Dep't 1994).
Plaintiffs argue that the sufficiency of the warning is a fact issue (e.g., id. at 11, citing Urena v. Biro Mfg. Co., 114 F.3d 359, 366 (2d Cir. 1997)). The Second Circuit in Urena, however, was applying New York State strict product liability law in holding that the adequacy of the warning was "'generally a question of fact to be determined at trial and is not ordinarily susceptible to the drastic remedy of summary judgment,'" 114 F.3d at 366 (quoting Beyrle v. Finneron, 199 A.D.2d 1022, 1023, 606 N.Y.S.2d 465, 466 (4th Dep't 1993); citing Harrigan v. Super Products Corp., Dow & Co., Inc., 237 A.D.2d 882, 882, 654 N.Y.S.2d 503, 504 (4th Dep't 1997)). In Bartlett, the United States District Court for the District of New Hampshire applied that state's law in crossing summary judgment motions on the adequacy of defendant's drug safety warning, 731 F. Supp. 2d at 144-45.
Sukljian v. Charles Ross & Son Co., Inc., 69 N.Y.2d 89, 95, 511 N.Y.S.2d 821, 503 N.E.2d 1358 (1986). See alsoMichael v. General Tire, Inc., 747 N.Y.S.2d 40, 297 A.D.2d 629, 629 (2d Dep't 2002) (distributor of defective tire liable under theory of strict products liability even though tire was defective before it was delivered to distributor); Nichols v. Agway, Inc., 280 A.D.2d 889, 720 N.Y.S.2d 691, 692 (4th Dep't 2001) (distributors subject to strict products liability); Joseph v. Yenkin Majestic Paint Corp., 261 A.D.2d 512, 690 N.Y.S.2d 611, 612 (2d Dep't 1999) (same); Harrigan v. Super Prods. Corp., 237 A.D.2d 882, 654 N.Y.S.2d 503, 504 (4th Dep't 1997) (same).
The New York Court of Appeals has explained: See Michael v. General Tire, Inc., 747 N.Y.S.2d 40, 297 A.D.2d 629, 629 (2d Dep't 2002) (distributor of defective tire liable under theory of strict products liability even though tire was defective before it was delivered to distributor); Nichols v. Agway, Inc., 720 N.Y.S.2d 691, 692 (4th Dep't 2001) (distributors are subject to strict products liability); Joseph v. Yenkin Majestic Paint Co., 690 N.Y.S.2d 611, 612 (2d Dep't 1999) (same); Harrigan v. Super Prods. Corp., 654 N.Y.S.2d 503, 504 (4th Dep't 1997) (same). Where products are sold in the normal course of business, sellers, by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation; additionally, by marketing the products as a regular part of their business such sellers may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods.
"The adequacy of the instruction or warning is generally a question of fact to be determined at trial, and is not ordinarily susceptible to the drastic remedy of summary judgment." Beyrle v. Finneron, 199 A.D.2d 1022, 606 N.Y.S.2d 465, 466 (4th Dep't 1993); see also Harrigan v. Super Products Corp., Dow Co., Inc., ___ A.D.2d ___, 654 N.Y.S.2d 503, 504 (4th Dep't 1997). Plaintiff also makes out a prima facie case of failure to warn.
In any event, plaintiffs raised a triable question of fact with respect to that issue ( see Ganter v. Makita U.S.A, 291 A.D.2d 847, 847-848; Chien Hoang v. ICM Corp., 285 A.D.2d 971, 972-973; Sanchez v. Otto Martin Maschinenbau GmbH Co., 281 A.D.2d 284, 285). We further conclude that there is a triable issue of fact concerning whether defendant breached its duty to warn ( see Ganter, 291 A.D.2d at 848; Harrigan v. Super Prods. Corp., 237 A.D.2d 882, 882-883; Smith v. Minster Mach. Co., 233 A.D.2d 892, 894).
Given that the jury found that the tire was defective before it was delivered to Nissan, it follows that Nissan distributed and sold a vehicle which had a defective tire. Accordingly, Nissan is liable under a theory of strict products liability for introducing a defective product into the stream of commerce (see Gebo v. Black Clawson Co., 92 N.Y.2d 387, 392; Bielicki v. T.J. Bentley, Inc., 248 A.D.2d 657, 659; Harrigan v. Super Prods. Corp., 237 A.D.2d 882, 883; Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 A.D.2d 512, 514).
Thus, on the record before us, we conclude that there is an issue of fact whether the risk to plaintiff from operating the table saw in an unguarded condition was so apparent as to obviate any duty to warn against such operation ( see, Chien Hoang v. ICM Corp., 285 A.D.2d 971, 972; see generally, Liriano v. Hobart Corp., 92 N.Y.2d 232, 241-242). The adequacy of the warnings on the table saw is also an issue of fact for trial ( see, Harrigan v. Super Prods. Corp., 237 A.D.2d 882; Smith v. Minster Mach. Co., supra, at 894). We therefore modify the order by granting defendants' motion in part and dismissing the complaint against MCA and the negligence and strict products liability causes of action against Makita based on a manufacturing defect.
In a case such as this, based entirely upon circumstantial evidence, it may be inferred that the product was defective when it left the manufacturer's control only if plaintiffs exclude all causes of the accident not attributable to the manufacturer ( see, Halloran v. Virginia Chems., 41 N.Y.2d 386, 388; Henry v GeneralMotors Corp., supra, at 949). It is well settled that distributors of defective products, as well as retailers and manufacturers, are subject to strict products liability ( see, Harrigan v. Super Prods. Corp., 237 A.D.2d 882, 883; Giuffrida v. Panasonic Indus. Co., 200 A.D.2d 713, 715). We agree with the court's determination that third-party defendants submitted competent proof establishing that the hot water heater was manufactured in accordance with all applicable national standards and that plaintiffs failed to exclude all other causes of the accident not attributable to third-party defendants. The court properly concluded that there is nothing in the record from which it may reasonably be inferred that the hot water heater was defective when it left the possession of the manufacturer or distributor ( see, James v. Harry Weinstein, Inc., 258 A.D.2d 562).
It is well settled that "'[d]istributors of defective products, as well as retailers and manufacturers are subject to potential strict products liability'" ( Harrigan v. Super Prods. Corp., 237 A.D.2d 882; see also, Giuffrida v. Panasonic Indus. Co., 200 A.D.2d 713; Brumbaugh v. CEJJ, Inc., 152 A.D.2d 69). However, liability may not be imposed for breach of warranty or strict products liability upon a party that is outside the manufacturing, selling, or distribution chain ( see, Passaretti v. Aurora Pump Co., 201 A.D.2d 475; Kane v. Cohen Distribs., 172 A.D.2d 720; Watford v. Jack LaLanne Long Is., 151 A.D.2d 742; Smith v. City of New York, 133 A.D.2d 818).