Centrone v. C. Schmidt & Sons, Inc.

• Decision Date: 29 June 1982
• Citation: 114 Misc.2d 840,452 N.Y.S.2d 299
• Court: New York Supreme Court
• Parties: Frank CENTRONE, Plaintiff, v. C. SCHMIDT & SONS, INC., and McCrory's, Defendants. C. SCHMIDT & SONS, INC., Third-Party Plaintiff, v. KERR GLASS MANUFACTURING CORPORATION, Midland Glass Company, Inc., Anchor Hocking Corporation, Glenshaw Glass Company Co. and Metro Containers, Blason II, Third-Party Defendants.

Page 299

452 N.Y.S.2d 299

114 Misc.2d 840

Frank CENTRONE, Plaintiff, v. C. SCHMIDT & SONS, INC., and McCrory's, Defendants.

C. SCHMIDT & SONS, INC., Third-Party Plaintiff, v. KERR GLASS MANUFACTURING CORPORATION, Midland Glass Company,

Inc., Anchor Hocking Corporation, Glenshaw Glass

Company Co. and Metro Containers, Blason

II, Third-Party Defendants.

Supreme Court, Special Term Nassau County, Part I.

June 29, 1982.

Anthony J. Loscalzo, New York City, for plaintiff.

Montfort, Healy, McGuire & Salley, Mineola, for third-party defendant Kerr Glass Mfg. Corp.

Clune, White & Nelson, Mineola, for third-party defendant Midland Glass Co., Inc.

Gervais & deCicco, Garden City, for third-party defendant Anchor Hocking Corp.

Curtis, Hart & Zaklukiewicz, Merrick, for defendant and third-party plaintiff C. Schmidt & Sons, Inc.

Bellofatto & Callahan, Lynbrook, for third-party defendant Glenshaw glass co.

White & Fleischner, New York City, for third-party defendant Metro Containers, Blason II.

Pizzatola & Inzerillo, Lake Ronkonkoma, for defendant McCrory's.

MEMORANDUM

ELI WAGER, Justice.

The plaintiff in this action seeks to recover damages from defendant and third-party plaintiff C. Schmidt & Sons, Inc. ("Schmidt"), which brews, bottles and distributes beer, and from defendant McCrory's for injuries allegedly sustained when a glass bottle containing Schmidt's beer exploded at a picnic sponsored by McCrory's. It appears that no one has possession of the bottle's fragments or its cap and that neither plaintiff nor Schmidt can identify the bottle's manufacturer. Schmidt has commenced a third-party action against five manufacturers of glass bottles, who are its sole suppliers, alleging that if plaintiff sustained injuries, such injuries were caused by the negligence of one of them and that all can be held liable on a theory of "concerted action" since each of them manufactures glass bottles pursuant to industry-wide standards and specifications promulgated by a trade association. Schmidt also alleges breach of warranty, strict products liability and it seeks a judgment against all five, each of their shares to be "in proportion to his share of the non-returnable glass bottle business he enjoyed from C. SCHMIDT & SONS, INC.," or in the alternative an apportionment of damages.

The five third-party defendants now move for summary judgment (and other relief), claiming that Schmidt's inability to identify which of them manufactured the defective bottle is fatal to its third-party action.

Pleading in the alternative is, of course, permissible when plaintiff does not know who among several persons has wronged him although he knows one did (Siegel, Practice Commentary C3014:7, McKinney's CPLR 3014) and all such persons may be joined, even in an exploding bottle case (Tarallo v. Grossman, 218 N.Y.S.2d 867). Nevertheless, as a general rule the plaintiff has the burden at the trial of establishing by a preponderance of the credible evidence that a particular defendant was actually guilty of some negligent act or omission which was the proximate cause of injuries: it is not enough to prove merely that an accident occurred and that one of the defendants must have caused it (see Bonheur v. Ramada Haulage, Inc., 72 A.D.2d 801, 421 N.Y.S.2d 929). The rule has been applied in products liability cases (e.g., O'Donnell v. Geneva Metal Wheel Co., 183 F.2d 733 cert. den. 341 U.S. 903, 71 S.Ct. 612, 95 L.Ed. 1342). However, the courts have promulgated several approaches to the issue of causation-in-fact in such cases which modify the general rule. One such approach applicable when all possible defendants have been joined is that codified in the Restatement (2d) of Torts at section 433B(3):

"Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm."

An example of the application of this theory is Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 wherein two hunting companions fired their guns independently and negligently in plaintiff's direction and one of them hit him. If the defendants in such a case cannot resolve the issue of causation-in-fact among themselves they are held jointly and severally liable. However, the rule (the "alternative liability" rule) applies only where it is proved that each of them acted tortiously; where only one defendant acted tortiously the burden of proving causation-in-fact remains the burden of the plaintiff (Restatement of Torts, § 433B, comment G at 446).

A second approach is applicable where the actors did not act independently as in the Restatement rule but instead engaged in concerted action. The concert of action theory, available even when not all possible defendants have been joined, proceeds on the notion that "those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him" (Prosser, Law of Torts, 4th ed., § 46 at 292). The concept that defendants who engage in concerted tortious action may be jointly and severally liable for injuries to third persons even though one or more may not have been chargeable with a distinct act of negligence is not new in this jurisdiction (see e.g., DeCarvalho v. Brunner, 223 N.Y. 284, 119 N.E. 563 and Finn v. Morgan, 46 A.D.2d 229, 362 N.Y.S.2d 292 ). In Finn, the court noted the tort was the race itself and that, if plaintiff failed to prove a race, the burden would be on the plaintiff to establish that the negligent acts of the defendants caused the injury. The concert of action theory is not applicable where the concerted action is not tortious or inherently dangerous (Beaver v. Batrouny, 71 A.D.2d 821, 419 N.Y.S.2d 391).

With the evolution of the law of products liability the concert of action approach has been modified to cover cases where the traditional evidentiary requirements of tort law may be insurmountable (Bichler v. Eli Lilly & Co., 79 A.D.2d 317, 436 N.Y.S.2d 625, affd. 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182). In Hall v. E. I. DuPont De Nemours & Co., Inc., 345 F.Supp. 353 (E.D.N.Y.1972) where the plaintiff children could not identify which manufacturer of dynamite blasting caps produced the cap which injured them because the product had been obliterated by the explosion, the plaintiffs sought to prove concert of action by showing knowledge of the danger and an agreement not to warn of the product's danger. The court ruled that what it called "control of the risk" could be shown by evidence of an explicit agreement, or evidence of tacit agreement or cooperation or evidence of independent adherence to industry-wide standards. The court directed that the burden of proof of causation be shifted to the defendants, in essence in combining elements of concert of action and alternative liability. Virtually the entire industry and the industry's trade association had been joined.

Bichler v. Eli Lilly & Co., supra, was a case involving DES (diethylstilbestrol, a prescription drug) brought by the daughter of a mother who had ingested the drug during her pregnancy. Although the plaintiff could not name the particular manufacturer of the DES taken by her mother, she sought (in a second trial of the issue) to hold Eli Lilly & Co. alone liable as a tortfeasor jointly and severally liable on an expanded theory of concerted action, claiming that the defendant and other manufacturers had wrongfully tested and marketed the drug. On appeal the judgment for plaintiff was affirmed, the Court of Appeals holding that there was sufficient evidence to support recovery by the plaintiff pursuant to either a theory of "concerted action by agreement" or "concerted action by substantial assistance". The evidence of an agreement was the parallel conduct of the manufacturers who marketed DES without first testing it on pregnant mice and the substantial assistance consisted of Lilly's aiding and encouraging other manufacturers to do so.

In Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. den. 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 the court modified the alternative liability theory, ruling that if the plaintiff joined the manufacturers of a substantial percentage of the appropriate DES market, each defendant would be liable for a proportionate share of the judgment equal to its proportionate share of the appropriate market. Each defendant would have the opportunity to prove it was not the actual producer. In Abel v. Eli Lilly & Co., 94 Mich.App. 59, 289 N.W.2d 20, the court held that plaintiff's allegation that all defendants acted in concert to produce and market ineffective and dangerous products (DES) without adequate warnings was sufficient to state a cause of action. Also the allegation that all defendants (all known manufacturers of DES whose products were distributed in Michigan during the relevant time period) acted wrongfully but only one caused harm to the plaintiff was sufficient to state a cause of action under the alternative liability theory.

The common denominator in all these cases is the finding of tortious action by the defendants. Pursuant to the pure alternative liability theory, the conduct of each of the defendants must have...