Alfieri v. Cabot Corp.

• Decision Date: 20 December 1962
• Citation: 235 N.Y.S.2d 753,17 A.D.2d 455
• Parties: Paul A. ALFIERI, as Administrator of the Goods, Chattels and Credits of John B. Alfieri, deceased, and Warren Carlie, Plaintiffs-Respondents, v. CABOT CORPORATION and The Great Atlantic & Pacific Tea Company, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 753

235 N.Y.S.2d 753

17 A.D.2d 455

Paul A. ALFIERI, as Administrator of the Goods, Chattels and Credits of John B. Alfieri, deceased, and Warren Carlie, Plaintiffs-Respondents, v. CABOT CORPORATION and The Great Atlantic & Pacific Tea Company, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 20, 1962.

Jerome Doyle, New York City, of counsel (Alan S. Rasch, New York City, on the brief), Cahill, Gordon, Reindel & Ohl, New York City, for appellants.

Augustin J. San Filippo, New York City, of counsel (Borris M. Komar, New York City, on the brief), for respondents.

Before BOTEIN, P. J., and VALENTE, McNALLY, STEVENS and STEUER, JJ.

HAROLD A. STEVENS, Justice.

This is an appeal from a judgment entered May 25, 1962 in favor of plaintiffs and against the defendants, after a jury trial. The jury returned a verdict for plaintiff Warren Carlie in the sum of $12,500. The jury returned a verdict for plaintiff Paul Alfieri, as Administrator of the Goods, Chattels and Credits of John B. Alfieri, deceased, in the sum of $180,000 for wrongful death and $20,000 for conscious pain and suffering. On motion of the defendants, the Trial Judge ordered a new trial unless plaintiff Alfieri stipulated to reduce the verdict to $90,000 plus interest for wrongful death of John B. Alfieri and $7,500 for pain and suffering. Plaintiff so stipulated.

John Alfieri, the deceased, and Carlie, both residents of New York, on Saturday, November 16, 1957, decided to spend a weekend at a cabin owned by Carlie in rural Pennsylvania. On the way they stopped in Broadheadsville, Pennsylvania, and purchased groceries, corn and a bag of charcoal from the defendant, the Great Atlantic and Pacific Tea Company (herein A & P) and steaks from an adjoining independent market. The charcoal, manufactured by defendant Cabot Corporation, was packaged in ten-pound sacks, and bore a label with the words 'Cabot E-Z Glo Charcoal Briquets' in prominent type, followed in somewhat smaller type by the words 'easy to light and quick to give off heat that's even and long lasting. Ideal for cooking in or out of doors. Excellent for picnics and barbecues and for emergencies.' A picture of a steak on a grill appeared on the bag adjoining the label. Testimony at the trial indicated the briquets were not a natural fuel product but a manufactured product containing 72% natural carbon and 28% other chemical ingredients.

That evening Alfieri and Carlie used the briquets in a charcoal brazier outside the cabin for the cooking of food. Thereafter, according to Carlie's testimony, the brazier was brought into the cabin to complete the cooking of ears of corn. The defendants contend it was brought into the cabin, a structure approximately 26 X 24 feet, with 7 windows and 2 doors, for the purpose of heating. From the testimony the cabin was a simple frame structure without fireplace, chimney or door sills, not too soundly constructed, for there were spaces between the door and floor and also a space where the wall siding joined the roof.

Eventually the young men (Carlie was age 25 years, Alfieri, age 27 years) went to bed, leaving the briquets burning in the brazier. Carlie awoke very ill the following Monday morning, stumbled out of the cabin and subsequently made his way to a doctor in the nearby town. The State Troopers who were notified, found Alfieri dead. The stated cause of death was carbon monoxide poisoning. Carlie also suffered from monoxide poisoning.

This action by the Administrator and Carlie was brought against the retail seller, A & P, and the manufacturer, Cabot Corporation (herein Cabot), for damages for breach of warranty and negligence. Alfieri sought damages for pain and suffering and wrongful death. The trial court dismissed all of plaintiffs' causes of action for breach of warranty (to which plaintiffs excepted) and permitted the case to go to the jury solely on the question of negligence as to both defendants. The jury found for the plaintiffs. The amounts were later reduced by stipulation as to Alfieri. It is from the judgments entered for both plaintiffs that defendants appeal.

Appellants urge, inter alia, plaintiffs were using the charcoal briquets for an unforeseeable purpose, in an unforeseeable manner, and it was error to permit the case to go to the jury. Also, a manufacturer cannot be held liable for failure to warn a remote purchaser of obvious dangers known to all persons of common experience. Error is also alleged in the refusal of a request to charge and to the charge as given. Appellants contend the verdict, even as reduced, is excessive, and it was error to add interest to the verdict for wrongful death computed from the date of death. On the question of interest, it might be noted that both parties agreed before the court that New York law applied as to damages and contributory negligence.

Respondents, in support of the determination, contend the jury findings of a breach of defendants' duty to warn purchasers of the latent and lethal danger in the briquets is amply supported by the evidence, the danger was foreseeable, damages awarded were not excessive, and the judgment appealed from should be affirmed.

Considering first the question of liability as to A & P. Nothing appears in the record to indicate that Cabot is other than a reputable manufacturing concern. Testimony at the trial was to the effect charcoal is generally used for cooking, because its cost would be prohibitive if used by the casual customer for heating. There was testimony also that what might be termed the dangerous potential of charcoal or charcoal briquets, or its probable lethal quality from combustion under certain conditions, is not generally known to the public. This was a packaged product when purchased and when resold in the same container by A & P, and there was nothing to indicate that its use by the ultimate purchaser might be harmful. Nor was there any proof that A & P had actual knowledge of the dangerous qualities of the briquets. At most A & P was a conduit between the manufacturer and the members of the purchasing public, and it gave no guarantees or warranties in connection with the sale of the briquets. Nothing appears in the record to warrant an inference that Carlie and Alfieri relied upon the special competence of A & P as the vendor, or that A & P by mere inspection could have discovered the danger. Under all of these circumstances A & P should not be held liable even though it might have discovered the dangerous character of the briquets by a test under controlled conditions. There was no obligation upon it to make such test. (Cf. Ebbert v. Philadelphia Electric Co., 330 Pa. 257, 198 A. 323; Restatement, Torts, 1948 Supplement §§ 401, 402; 2 Harper & James, Torts, pp. 1597 et seq.; Bruckel v. Milhau's Son, 116 App.Div. 832, 102 N.Y.S. 395; cf. Santise v. Martins, Inc., 258 App.Div. 663, 17 N.Y.S.2d 741; Brown v. Hersch Chemists, 281 App.Div. 43, 117 N.Y.S.2d 631, aff'd 305 N.Y. 755, 113 N.E.2d 151; Warren, Negligence, Vol. 2 B, pp. 181 et seq.

A different question is posed as to the liability of Cabot, the manufacturer. The label on the packaged briquets announced that the briquets were 'easy to light and quick to give off heat * * * [i]deal for cooking in or out of doors.' Since these briquets were a manufactured product (carbon to which chemicals were added), the representation concerning heat, and ideal for cooking indoors, would serve to allay any possible fears even by a better informed public than existed at the time of this tragic occurrence. It could also lull the user into a false sense of security. Moreover, the reference to 'heat' even to the casual mind, might well seem not to be restricted to the sole use for cooking either indoors or outdoors.

Testimony at the trial indicated that, unlike other fuels used for cooking or heating, if these briquets were used indoors without adequate ventilation, a high concentration of carbon monoxide would result. Charcoal is free burning, may continue burning in the absence of adequate ventilation, and the carbon monoxide produced will not alert the user to his danger, whereas other fuels, for example coal, would go out under circumstances where charcoal would continue to burn. Fuel oil would use up the nitrogen, and before an appreciable fraction of carbon monoxide appeared in the air, a smoky flame would give warning, in addition to the sulphurous odorous gases which might be given off by sulphur compounds in the oil. Even wood, where the oxygen is steadily decreasing, would tend to smoke itself, and the person, out. However, oil, coal and wood, when used indoors, would be in containers especially designed for such use. The charcoal briquets consisted of approximately 68% to 72% pure carbon, and burn primarily to carbon monoxide. With restrained oxygen (as existed in this cabin, or in any place inadequately ventilated) the percentage of carbon monoxide goes up, the maximum content being in the area of 6%, after which an explosion would occur because of the flammability of carbon monoxide. There was testimony also that 4/10 of 1% could cause death or serious injury, and 3/4 of one pound of briquets burning in the cabin space involved here under the existing conditions, would emit a lethal dose of carbon monoxide in one hour. Testimony on behalf of the defendant was that the company knew the briquets would be used indoors as well as outdoors, but no tests were made to determine the amount of carbon monoxide that would be given off by the use of these briquets in an enclosed area. It was conceded as a fact that charcoal and charcoal briquets were also used as a fuel to heat. Cabot's chemical engineer, who directed the experiments to develop the briquets, testified he knew of the properties of charcoal, and that their use indoors without proper ventilation was dangerous.

It may fairly be said that the use of these briquets indoors as a fuel for...