Johnson v. Johnson Chemical Co., Inc.

• Citation: 588 N.Y.S.2d 607,183 A.D.2d 64
• Parties: , 61 USLW 2300, Prod.Liab.Rep. (CCH) P 13,488 Annie JOHNSON, et al., Respondents, v. JOHNSON CHEMICAL CO., INC., et al., Appellants.
• Decision Date: 13 October 1992
• Court: New York Supreme Court Appellate Division

Page 607

588 N.Y.S.2d 607

183 A.D.2d 64, 61 USLW 2300,

Prod.Liab.Rep. (CCH) P 13,488

Annie JOHNSON, et al., Respondents, v. JOHNSON CHEMICAL CO., INC., et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Oct. 13, 1992.

Bower & Gardner, New York City (Leah C. Greenman and Virginia Goodman-Futterman, of counsel), for appellant Johnson Chemical Co., Inc.

LaBrum & Doak, New York City (John B. Cartafalsa, Jr., of counsel), for appellant Aerofill, Inc.

Smith, Mazure, Director & Wilkins, P.C., New York City (Michael K. Berman, of counsel), for appellant J.L. Variety, Inc. d/b/a Bobby's II.

Amabile & Erman, P.C., Brooklyn (Barbara J. Caputo, of counsel), for appellant Concord Co.

Leonard L. Finz, P.C., and DiJoseph & Gluck, New York City (Leonard L. Finz, Steven DiJoseph, and Arnold DiJoseph III, of counsel), for respondents (one brief filed).

Before BRACKEN, J.P., and LAWRENCE, RITTER and COPERTINO, JJ.

BRACKEN, Justice Presiding.

May a plaintiff who admittedly failed to read the warnings supplied by the manufacturer of a product recover damages based on the theory that the manufacturer's warnings were inadequate? We hold that, under certain circumstances, a plaintiff may so recover.

On August 14, 1985, the plaintiff Julie Kono went to Bobby's Department Store II on Church Avenue in Brooklyn, and purchased approximately six or seven cans of a product which she described alternatively as "La Bomba" or "King Roach Spray". She intended to combat a roach infestation in her apartment in Staten Island because, in her words, "the roaches there were crawling all over eating and dropping from the ceiling".

Ms. Kono had sprayed her apartment on prior occasions. She testified at her deposition, "I always used a bomb". Ms. Kono had in fact used "La Bomba" on three or four previous occasions, the last such occasion having been in January 1985. However, Ms. Kono claimed to have no recollection of ever having read any of the instructions or warnings which accompany these products. She remembered seeing the name of the product, "King Roach Bomb", but nothing else.

Ms. Kono also testified at her deposition that on several prior occasions she had registered complaints with her landlord to the effect that her kitchen stove "does not come on". She claimed that whenever she used the stove she ignited the gas burner with a match. She stated that she did not know what a pilot light was, and that she did not know whether her stove was equipped with pilot lights.

Ms. Kono stored the six or seven cans of "La Bomba" in a closet overnight. At approximately 8:30 P.M., on the following day, Thursday, August 15, 1985, Ms. Kono took two or three of these cans into her kitchen. Her stove was not on at this time. According to her deposition testimony, she removed the top from one of the cans and pressed a button. She stated that, prior to her accident, she had activated "[j]ust one can". She admitted that, prior to removing the top and pressing the button, she had not read anything on the label of that can.

The can started to emit the spray and Ms. Kono heard a "hissing sound". Less than one minute later, just after she had bent down to pick up the remaining cans, Ms. Kono testified that she heard "a boom" and saw "a fire". Both Ms. Kono and her sister, the coplaintiff Annie Johnson, who had just entered the kitchen, were burned. They were rescued by two other occupants of the apartment, who rushed them to the hospital.

The present action was then commenced against: (1) Johnson Chemical Co., Inc. (hereinafter Johnson), the distributor of a product known as "La Bomba", (2) Aerofill, Inc. (hereinafter Aerofill), the manufacturer of a certain indoor fogger roach and insect killer product known as King Spray Roach and Insect Killer a/k/a La Bomba, (3) J.L. Variety Inc., d/b/a Bobby's II (hereinafter J.L.), the seller of the product known as "La Bomba", and (4) the Concord Company, the plaintiffs' landlord.

By notice of motion dated October 19, 1989, the defendant Johnson moved for summary judgment dismissing the plaintiffs' complaint and the codefendants' cross claims against it. As the basis for this motion, Johnson's attorney argued that the injuries suffered by Ms. Kono and Ms. Johnson were caused exclusively by Ms. Kono's own reckless misuse of the product.

In support of this contention, Johnson submitted what its representative averred were accurate copies of the warnings which accompany "La Bomba". The label on the can instructed the user to "put out all flames and pilot lights" before use. Also, the warnings on the top of the can stated: "WARNING. USE ONLY ONE CAN PER ROOM. WARNING. ALL FLAMES, PILOT LIGHTS, BURNERS AND OVENS MUST BE TURNED OFF BEFORE USING THIS PRODUCT".

Johnson also submitted a transcript of the deposition of Chief Donald Ruland, a member of the New York City Fire Department, who responded to the scene of the accident. He testified, "I found one roach bomb on the counter, one of the kitchen counters, and I found three roach bombs on the floor of the kitchen * * * These four were triggered. These were the type of roach bombs * * * where you turn them on and you have a gadget that you can keep the spray or the fogger going".

Chief Ruland also testified that, based on his investigation, he concluded that the origin of the fire was in the area of the pilot light in the kitchen stove. He further was of the opinion that the use of four cans of "La Bomba" in an area as small as Ms. Kono's kitchen had been improper, and that the basic cause of the fire was "misuse of a flammable material".

The other defendants made cross motions for summary judgment on similar grounds. The plaintiffs, in addition to opposing the foregoing motion and cross motions, moved to strike the answer of the defendant Johnson.

In opposition to the defendants' motions, the plaintiffs submitted an affirmation executed by their attorney, as well as an affidavit executed by Fred Presant, a chemist and a "professional consultant in the areas of new product development". According to Mr. Presant, in order for a product warning to be effective, "it must specify the dangerous results in the context of the particular warning". He asserted that "La Bomba" is a product "commonly used in the kitchen area" and that the labels annexed to it should have specified the actual dangers (explosion or flash fires) which would present themselves if the product were used near a pilot light. The plaintiffs' attorney argued that, even if the warnings were adequate as a matter of law, the product in question should be considered defective because it is not significantly more effective than similar, nonflammable products.

The Supreme Court, Kings County (Shaw, J.) denied Johnson's motion, the cross motions of the three codefendants, and the plaintiffs' cross motion to strike Johnson's answer. On these appeals by the four defendants, we review only so much of the order as denied their respective motion and cross motions. For the following reasons, we modify the order so as to grant summary judgment to Concord.

On appeal, the defendants argue that the plaintiffs' injuries were caused solely by Ms. Kono's misuse of the product. It is true that the product was misused, in the sense that it was not used as intended by the manufacturer. The record establishes conclusively that at least one can of "La Bomba" was activated near a pilot light. It is also true that the injuries would not have occurred but for the use of the product in this way. There is, in other words, no question of fact as to whether the plaintiffs' injuries were caused by Ms. Kono's misuse of the product. The question is whether this circumstance, by itself, absolves any or all of the defendants of liability.

A manufacturer may unquestionably be held liable for the failure to warn of the dangers which may result from the use of its product as intended (see, Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 582 N.Y.S.2d 373, 591 N.E.2d 222; Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204; Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 405 N.Y.S.2d 448, 376 N.E.2d 920; Alfieri v. Cabot Corp., 17 A.D.2d 455, 235 N.Y.S.2d 753, aff'd, 13 N.Y.2d 1027, 245 N.Y.S.2d 600, 195 N.E.2d 310, 1 Weinberger, NY Products Liability, § 18.04). Liability may be premised upon the complete absence of warnings as to a particular hazard (e.g., Alfieri v. Cabot Corp., supra ), or upon the inclusion of warnings which are insufficient (see, e.g., Fox v. Wyeth Labs., 129 A.D.2d 611, 514 N.Y.S.2d 107). Whether warnings are sufficient to alert the product user to potential hazards is usually, but not always, a question of fact (see, Oliver v. N.L. Indus., 170 A.D.2d 959, 566 N.Y.S.2d 128; Oliver v. NAMCO Controls, 161 A.D.2d 1188, 556 N.Y.S.2d 430; cf., Furstenheim v. Congregation of First Church of Kew Gardens, 21 N.Y.2d 893, 289 N.Y.S.2d 410, 236 N.E.2d 638, aff'g, 28 A.D.2d 533, 282 N.Y.S.2d 198; Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 423 N.Y.S.2d 95, aff'd, 52 N.Y.2d 768, 436 N.Y.S.2d 614, 417 N.E.2d 1002; Oza v. Sinatra, 176 A.D.2d 926, 575 N.Y.S.2d 540).

A more difficult question is whether, and under what circumstances, liability may be imposed based upon a manufacturer's failure to warn of the hazards which may follow from the use of a product in some abnormal way. The general rule is that there may be liability in such cases when it is proved that the abnormal use of the product in question was reasonably foreseeable (see, e.g., Lugo v. LJN Toys, 75 N.Y.2d 850, 552 N.Y.S.2d 914, 552 N.E.2d 162; McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 226 N.Y.S.2d 407, 181 N.E.2d 430; Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 150 N.Y.S.2d 792, 134 N.E.2d 63; Cramer v. Toledo Scale Co., 158 A.D.2d 966, 551 N.Y.S.2d 718; Darsan v. Guncalito Corp., 153 A.D.2d 868, 545 N.Y.S.2d 594; Trivino v. Jamesway Corp., 148 A.D.2d 851, 539 N.Y.S.2d 123; Miller v....