Opinion
Argued January 10, 1990
Decided February 20, 1990
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Jack Turret, J.
Joseph M. Buderwitz, Anthony Caputo and Joseph J. Buderwitz, Jr., for appellant.
John E. Fitzgerald and Robert C. Agee for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
Plaintiffs instituted this action to recover for personal injuries sustained when the infant plaintiff was struck in the eye by part of a toy manufactured by defendant and thrown by a playmate. They claim that the toy, a doll known as "Voltron-Defender of the Universe", was a replica of a well-known television cartoon character who overcame enemies by hurling his shield at them. The part of the doll that struck the infant plaintiff was detachable and described variously as a spinning "shield", "blade" or "star" with eight points around its circumference. Plaintiffs allege the product, marketed as suitable for children age four and older, was defective because improperly designed and because marketed without adequate warnings.
A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose (see, Micallef v Miehle Co., 39 N.Y.2d 376, 385-386; Biss v Tenneco, Inc., 64 A.D.2d 204, 206). Plaintiff has submitted expert evidence that, based upon customs and standards in the toy safety community, the part was defective because detachable from the doll and that throwing it was foreseeable because of the extensive television exposure in which Voltron did so. This was sufficient response to defendant's motion for summary judgment to establish questions for the jury of whether the product was defective and reasonably safe for its intended use or a reasonably foreseeable unintended use.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order affirmed, etc.