Opinion
1282
September 11, 2003.
Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered July 22, 2002, which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion to amend the complaint to allege breach of an implied warranty of merchantability, unanimously reversed, on the law, without costs, the motion granted, and the cross motion denied. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Steven J. Horowitz, for plaintiff-respondent.
H. Nicholas Goodman, for defendant-appellant.
Before: Tom, J.P., Mazzarelli, Andrias, Friedman, Marlow, JJ.
Plaintiff's complaint alleges she was injured by hot tea she purchased from defendant. She claims it was served to her in two cellulose cups — one inside the other — and that when she opened the lid, the tea spilled causing her injury.
There is no basis to hold defendant liable on a theory that it breached a duty of reasonable care to the plaintiff-customer under these circumstances. Plaintiff failed to raise a triable issue of fact that the tea was heated beyond reasonably expected limits ( see Olliver v. Heavenly Bagels, Inc., 189 Misc.2d 125; Huppe v. Twenty-First Century Rests. of Am. Inc., 130 Misc.2d 736). She also failed to raise a triable issue of fact as to the reasonableness of the manner the tea was served. "Double cupping" is a method well known in the industry as a way of preventing a cup of hot tea from burning one's hand. Further, plaintiff raised no issue of fact about whether defendant breached its duty of care by failing to securely place the lids on the hot cups (see Reese v. Burger King Rest., 1990 WL 12383 [Ohio App. 10th Dist. Feb. 13, 1990];Greene v. Boddie-Noell Enters., Inc., 966 F. Supp. 416). Indeed, it requires no special insight, knowledge or skill to appreciate that, ordinarily, one must take care not to spill tea when removing the lid from a "double cup" of hot tea.
Plaintiff has abandoned her duty to warn cause of action.
We therefore conclude that, where, as here, the product has an inherently dangerous attribute, the law imposes liability only when the product's danger is not reasonably contemplated by the consumer and the product is unreasonably dangerous for its intended use (see Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479; Olliver, 189 Misc.2d at 127; Huppe, 130 Misc.2d at 738).
Finally, plaintiff's cross motion should have been denied as plaintiff's breach of warranty claim is patently meritless (see Daniels v. Empire-Orr, Inc., 151 A.D.2d 370, 371). She has afforded no basis for the inference necessary to her proposed claim, that the tea was not "fit for the ordinary purposes for which such goods are used" (UCC 2-314[c]; Huppe, supra; see also Martinelli v. Custom Accessories, Inc., 14 Mass. L Rptr 601).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.