Opinion
June 2, 1955.
Appeal from the City Court of the City of New York, County of New York, PICIARELLO, J.
Eugene H. Nickerson and Lawrence L. Stentzel for appellant.
Max Shlivek, Saul S. Brin and David G. Godwin for respondents.
Plaintiff did not establish that the product was harmful or inherently dangerous. The ground of liability found below was negligence in defendant's advertising, in either assuring the public that the use of its product involved no risk or failing to warn of its potential danger. That issue was, however, not fairly tendered nor fully tried. Such negligence can be established only by proof of knowledge by defendant of potential danger to a number of persons in using its product. We do not hold that mere redness of hands acquired by a small percentage of those tested by defendant unassociated with any form of dermatitis is sufficient by itself to put defendant on notice of possible danger to users of its product. A new trial of all the issues should be had in the interests of justice.
The judgment should be reversed and new trial ordered, with costs to appellant to abide the event.
HOFSTADTER and EDER, JJ., concur; SCHREIBER, J., concurs for reversal but votes for dismissal of complaint.
Judgment reversed, etc.