Cawley v. General Motors Corp.

• Decision Date: 23 August 1971
• Parties: , 9 UCC Rep.Serv. 838 John CAWLEY and Hazel Cawley, Plaintiffs, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: New York Supreme Court

Page 246

324 N.Y.S.2d 246

67 Misc.2d 768, 9 UCC Rep.Serv. 838

John CAWLEY and Hazel Cawley, Plaintiffs, v. GENERAL MOTORS CORPORATION, Defendant.

Supreme Court, Broome County.

Aug. 23, 1971.

Scanlon, Vetrano & Ringwood, Endicott, for plaintiffs.

Levene, Gouldin & Thompson, Binghamton, for defendant.

DECISION

PAUL J. YESAWICH, Jr., Justice.

Plaintiff, Hazel Cawley, was the operator of a motor vehicle which was struck in the rear by a motor vehicle which had been manufactured by General Motors Corporation and was owned by one Mitchell. This action, to recover damages for personal injuries, has been brought against the manufacturer on theories of breach of implied warranty and negligence. As to the former cause of action the complaint asserts that the accident was caused or contributed to by reason of the fact that the striking vehicle's accelerator system was of faulty design and was comprised of improper materials.

Urging that the plaintiff operator, and her husband in his derivative action, lack privity, defendant has moved to dismiss the first cause of action and so much of the derivative action as pertains to the alleged breach of implied warranty. It contends that privity is still an element in such an action where recovery is sought by bystanders and strangers. In support of this contention it relies on Berzon v. Don Allen Motors, Inc., 23 A.D.2d 530, 256 N.Y.S.2d 643 and Mull v. Ford Motor Company, Inc., 2 Cir., 368 F.2d 713.

In Berzon v. Don Allen Motors, Inc. (supra) the court refused to extend to bystanders the principle, enunciated in Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81, that a vendor is liable to contemplated users of an article for breach of a law implied warranty, for the reason that such a radical departure from established law, if it was to be accomplished, should be effected by legislative action. However, since that decision, by judicial pronouncement, a number of long established precedents have been abolished and many concepts of liability have been radically altered, e.g. Spano v. Perini Corp., 25 N.Y.2d 11, 302 N.Y.S.2d 527, 250 N.E.2d 31; Flanagan v. Mt. Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871; Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192; Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897.

In Mull v. Ford Motor Company (supra) a majority of the Court specifically declined to base their decision upon the non-existence of a right in a bystander to recover for breach of an implied warranty. Further, at that time it appeared there was no 'clear and persuasive indication' that the New York Court of Appeals would extend...