holding that a defendant must provide evidence of other potential causes of the accident to switch the burden to the plaintiff to produce "direct evidence of a defect"Summary of this case from Berger v. Mazda Motor of Am., Inc.
July 16, 1990.
Appeal from the Supreme Court, Suffolk County, William L. Underwood, J.
Joel P. Stolowitz (Sweetbaum Sweetbaum [Marshall D. Sweetbaum] of counsel), for appellants.
Meiselman, Boland, Reilly Fugazzi (Donald J. Boland of counsel), for Atlantic Rentals Sales, Inc., respondent.
Sheft Sweeney (David J. Fischman of counsel), for Bud Maron and another, respondents.
A commercial lessor who introduces a defective product into the marketplace should be subject to the same potential liability that faces the manufacturer or retailer of a defective product. Applying this rule to the present case, we conclude that the trial court erred in dismissing those of the plaintiffs' claims that were based on the doctrines of strict products liability and breach of warranty, insofar as those claims were asserted against the defendant Atlantic Rentals Sales, Inc. This defendant, unlike its codefendants, was in the business of renting equipment, and leased an allegedly defective chair. This defendant therefore may be liable, even in the absence of fault, for the injuries suffered by the plaintiffs on account of the alleged defect in the chair.
The plaintiff Mary Winckel is an antiques dealer. On June 8, 1984, she participated in an antiques show that took place at the New York Coliseum. During the course of the exhibition, she sat down on a folding metal chair and the chair collapsed. There was evidence that after the accident, parts of the chair appeared to be bent, and that a metal band underneath the chair was broken in half. She claims to have suffered several injuries as a result of this incident, including a "fracture of the coccyxgeal segment".
The plaintiffs Mary Winckel and Richard Winckel sued the defendant Atlantic Rentals Sales, Inc. (hereinafter Atlantic), the owner of the chair in question. The first cause of action, which is based on negligence, is not at issue on appeal. The second cause of action seems to sound in breach of warranty, but could also be interpreted as asserting a cause of action based on the doctrine of strict products liability. The third cause of action is based on Mr. Winckel's loss of consortium. The plaintiffs also sued Bud Maron and Murial Maron. Mr. Maron is an officer or employee of Gem Shows, Inc., a corporation in the business of promoting antiques shows. The defendant Atlantic brought a third-party action against the third-party defendant Samsonite Corporation (hereinafter Samsonite), the alleged manufacturer of the chair.
The action proceeded to trial on December 5, 1988. The court dismissed the third-party action against Samsonite after the completion of opening statements. After the plaintiffs had presented their case to the jury, the court also dismissed the plaintiffs' complaint insofar as it was asserted against the defendant Atlantic. Later, after Mr. Maron had testified, the court reaffirmed its decision to dismiss the complaint insofar as it was against Atlantic, and also dismissed the complaint insofar as it was against Mr. and Mrs. Maron. Judgment was subsequently entered in favor of the defendants and against the plaintiffs. This appeal followed.
The plaintiffs argue that they succeeded in establishing a prima facie case based on theories of breach of implied warranty and strict products liability. In order to establish liability based upon these theories, the plaintiffs were required to prove (1) that the chair in question was not fit to be used as intended, (2) that the defect existed as of the time that it left the defendants' hands, (3) that the plaintiff Mary Winckel used the chair in question as it was intended to be used, (4) that the plaintiff Mary Winckel would not have been able to discover any defect in the chair through the exercise of ordinary care, and (5) that the defect was a substantial factor in causing the accident (see generally, Codling v Paglia, 32 N.Y.2d 330; 2C Warren, New York Negligence, Products Liability, § 3.01; 47 N.Y. Jur, Products Liability, §§ 74-78; PJI 2:141). We believe that the plaintiffs have proved these elements of their cause of action.
While there was no proof of a specific defect in the chair, under certain circumstances a jury may infer that a product was defective solely on the basis of proof that the product did not function as intended. However, if a defendant comes forward with any evidence that the accident was not necessarily attributable to a defect, the plaintiff must then produce direct evidence of a defect (see generally, Halloran v Virginia Chems., 41 N.Y.2d 386, 388; Putnick v H.M.C. Assocs., 137 A.D.2d 179, 183; Brandon v Caterpillar Tractor Corp., 125 A.D.2d 625, 626; Coley v Michelin Tire Corp., 99 A.D.2d 795; Yager v Arlen Realty Dev. Corp., 95 A.D.2d 853; Iadicicco v Duffy, 60 A.D.2d 905; Tully v Empire Equip. Corp., 28 A.D.2d 935; 1 Weinberger, New York Products Liability § 20:04). In this case, the defendants failed to offer any cogent reason for the chair's collapse, and the plaintiffs were entitled to rely on circumstantial evidence.
Based on our review of the facts of this case, we believe that the jury could properly have found that the chair upon which Mary Winckel sat was, in fact, defective, and that it was defective at the time it was delivered by the defendant Atlantic to the New York Coliseum. We also conclude that the jury could have found that Mary Winckel could not have discovered the defect through the exercise of ordinary care, and that she used the chair as it was intended to be used. A prima facie case based on the theories of breach of warranty and strict products liability was therefore established. However, the question remains whether the jury could properly have concluded that these particular defendants are liable for the injuries allegedly caused by this defective product. We find that such liability may be imposed only on the defendant Atlantic, the owner and lessor of the chair.
Our precedents establish the rule that a lessor of chattel is "under an obligation to ascertain that the chattel was reasonably fit for the * * * intended use" (Industralease Automated Scientific Equip. Corp. v R.M.E. Enters., 58 A.D.2d 482, 486). In other words, under the common law as it has evolved in this State, a lessor of a chattel will be held to have made an implied warranty that the chattel in question is fit to be used as intended (see, Industralease Automated Scientific Equip. Corp. v R.M.E. Enters., supra; see also, Hoisting Engine Sales Co. v Hart, 237 N.Y. 30, 37; Atlantic Tug Equip. Co. v S L Paving Corp., 40 A.D.2d 589, 590; Communications Groups v Warner Communications, 138 Misc.2d 80, 84-85). As the court stated in Vander Veer v Tyrrell ( 29 A.D.2d 255, 259), "[w]here possession of a chattel is transferred in exchange for a rental and the parties contemplate the return of the chattel to the owner, a warranty will be implied that the chattel is reasonably fit for the purpose for which it is leased or hired" (citing Matter of Casualty Co. [Bliss Co. Claim], 250 N.Y. 410; Hoisting Engine Sales Co. v Hart, 237 N.Y. 30, supra; Moriarity v Porter, 22 Misc. 536; 5 N.Y. Jur, Bailment, § 72; Farnsworth, Implied Warranties of Quality in Non-Sales Cases, 57 Colum L Rev 653 ; see also, Craig v American Dist. Tel. Co., 91 Misc.2d 1063; 1 Weinberger, New York Products Liability § 7:05). In addition to this common law of implied warranty, New York's statutory implied warranty of fitness extends to transactions that involve certain leases (see, UCC 2-314, 2-315, 2-318; Owens v Patent Scaffolding Co., 77 Misc.2d 992, revd on other grounds 50 A.D.2d 866; Hertz Commercial Leasing Corp. v Transportation Credit Clearing House, 59 Misc.2d 226, revd on other grounds 64 Misc.2d 910; see also, Industralease Automated Scientific Equip. Corp. v R.M.E. Enters., supra; 1 Weinberger, New York Products Liability § 7:06).
While actions based on a theory of breach of implied warranty could, at one time, be pursued only by those individuals who were in privity with the manufacturer, retailer, or lessor, in Codling v Paglia ( 32 N.Y.2d 330, 342, supra), the Court of Appeals extended the right to relief on the basis of implied warranties to "any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages". The Codling court did not recognize a completely new cause of action for "strict products liability", but instead simply "recognized in its modern guise a pre-existing theory of liability * * * described by use of the phrase `breach of implied warranty'" (Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, 401). Moreover, in 1975 the Legislature amended New York's UCC 2-318, and this amended provision expressly states that the UCC's implied warranties extend "to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods" (UCC 2-318; see also, Heller v U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 410-411). The doctrine of privity has therefore lost all significance in actions to recover damages for personal injuries, although it retains some importance in actions to recover damages for economic losses (see, Key Intl. Mfg. v Morse/Diesel, Inc., 142 A.D.2d 448).
The rule in New York, therefore, has developed that a commercial lessor of a product will be held strictly liable for personal injuries, just as would a product manufacturer, even in the absence of privity, at least where the product lease in question was "made by an individual in the business of leasing a particular product" (Nastasi v Hochman, 58 A.D.2d 564; see also, Opera v Hyva, Inc., 86 A.D.2d 373; Farina v Niagara Mohawk Power Corp., 81 A.D.2d 700). As we stated in Mi Suk Buley v Beacon Tex-Print ( 118 A.D.2d 630, 631), "this court has recognized that some leases, i.e., those made by an individual in the business of leasing the particular product, could give rise to a cause of action sounding in strict products liability" (citing Samaras v Gatx Leasing Corp., 75 A.D.2d 890; Nastasi v Hochman, supra; see also, 1 Weinberger, New York Products Liability § 7:07).
The rule that commercial lessors that are in the business of placing products into the stream of commerce should be equated with product manufacturers for the purposes of determining strict liability (see, e.g., Opera v Hyva, Inc., supra; Nastasi v Hochman, supra) has gained wide acceptance in other jurisdictions. For example, in Miles v General Tire Rubber Co. ( 10 Ohio App.3d 186, 189, 460 N.E.2d 1377, 1380), the court stated that "[t]here is no logical reason to distinguish commercial lessors from manufacturers or sellers for the application of strict liability for dangerously defective goods." The court went on to catalog a list of jurisdictions that have adhered to this rule (Miles v General Tire Rubber Co., supra; see also, Peterson v Safeway Steel Scaffolds Co., 400 N.W.2d 909 [SD]; Francioni v Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736; Woodworth v Gates Learjet Corp., 173 Mich. App. 480, 434 N.W.2d 167; Steffl v J.I. Case Co., 862 F.2d 692; 12A Frumer and Friedman, Products Liability § 3.03  [b] [iii], at 3-425 — 3-427; Restatement [Second] of Torts § 402 A).
We therefore conclude that the plaintiff has established a prima facie case against the defendant Atlantic. The plaintiffs' second cause of action, insofar as it is asserted against Atlantic, should therefore be reinstated. While this cause of action expressly refers to a "breach" of a "warranty", it may also be interpreted as sounding in strict products liability. There is, in fact, no substantive distinction between these two theories in the context of this case. "[S]trict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action" (Mendel v Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 345). While the distinction between these two theories may have significance with respect to Statutes of Limitation or other issues (see, Heller v U.S. Suzuki Motor Corp., 64 N.Y.2d 407, supra; Martin v Dierck Equip. Co., 43 N.Y.2d 583), the distinction is in no way critical with respect to the issue of Atlantic's potential liability. Even if the distinction were critical in some way, the plaintiffs would, under all the circumstances of this case, be entitled to leave to amend their complaint to clarify that their second cause of action comprises these two separate theories (see, CPLR 3025 [b]; Loomis v Civetta Corinno Constr. Corp., 54 N.Y.2d 18; Murray v City of New York, 43 N.Y.2d 400, 405). The plaintiffs' third cause of action, which is to recover damages for loss of consortium, should also be reinstated.
However, imposition of strict liability or liability based on breach of warranty upon the Marons is not warranted. They personally never had title to or actual possession of the chair; instead, they (or their corporation) rented the chair from Atlantic as an incidental part of their primary undertaking, i.e., the promotion of an antiques show. The chair was delivered (along with approximately 300 other chairs) by Atlantic to the Coliseum, and then set up by union members who, according to Mr. Maron, had been retained by a separate company. Thus, "distribution of [the] product [was] incidental to [the Marons'] regular business" (Perazone v Sears, Roebuck Co., 128 A.D.2d 15, 20), so that strict products liability should not be imposed on them.
As the Court of Appeals noted in Sukljian v Ross Son Co. ( 69 N.Y.2d 89, 95), "[t]he policy considerations that have been advanced to justify the imposition of strict liability on manufacturers and sellers in the normal course of business obviously lack applicability in the case of a party who is not engaged in the sale of the product in issue as a regular part of its business" (see also, Perazone v Sears, Roebuck Co., supra; Gobhai v KLM Royal Dutch Airlines, 57 N.Y.2d 839, affg 85 A.D.2d 566; Brumbaugh v CEJJ, Inc., 152 A.D.2d 69, 71; Wellman v Supreme Farmstead Equip., 100 Misc.2d 956; Restatement [Second] of Torts § 402 A, comment f). In other words, since the Marons were not in the business of leasing chairs (cf., Mi Suk Buley v Beacon Tex-Print, 118 A.D.2d 630, 631, supra; Samaras v Gatx Leasing Corp., 75 A.D.2d 890, supra), it would not be appropriate to impose liability on them in the absence of fault.
Accordingly, the judgment under review should be modified, on the law, by reinstating the plaintiffs' second and third causes of action insofar as they are asserted against Atlantic, and by severing those causes of action and granting the plaintiffs a new trial with respect to them. The trial court's dismissal of Atlantic's third-party complaint is not incorporated in the judgment and is not before us on this appeal by the plaintiffs.
THOMPSON, J.P., BRACKEN, LAWRENCE and KUNZEMAN, JJ., concur.
Ordered that the judgment is modified, on the law, by deleting the provisions thereof that are in favor of the defendant Atlantic Rentals Sales, Inc., dismissing the plaintiffs' second and third causes of action insofar as they are asserted against it, and substituting therefor a provision severing those causes of action insofar as they are asserted against it; as so modified, the judgment is affirmed, and a new trial is granted to the plaintiffs with respect to the second and third causes of action insofar as they are asserted against Atlantic Rentals Sales, Inc., with costs to the plaintiffs payable by Atlantic Rentals Sales, Inc., to abide the event of the new trial.