Codling v. Paglia

• Decision Date: 20 January 1972
• Docket Number: 2,Nos. 1,s. 1
• Citation: 38 A.D.2d 154,327 N.Y.S.2d 978
• Parties: , 10 UCC Rep.Serv. 304 Marcia CODLING et al., Respondents, v. Christino PAGLIA, Respondent, and Chrysler Corporation, Appellant. Christino PAGLIA, Respondent, v. CHRYSLER CORPORATION, Appellant. Action
• Court: New York Supreme Court — Appellate Division

Page 978

327 N.Y.S.2d 978

38 A.D.2d 154, 10 UCC Rep.Serv. 304

Marcia CODLING et al., Respondents, v. Christino PAGLIA, Respondent, and Chrysler Corporation, Appellant.

Christino PAGLIA, Respondent, v. CHRYSLER CORPORATION, Appellant.

Action Nos. 1, 2.

Supreme Court, Appellate Division, Third Department.

Jan. 20, 1972.

Maynard, O'Connor & Smith, Albany (Berman & Frost, by Sheila L. Birnbaum, New York City, of counsel), for appellant Chrysler Corp.

DeGraff, Foy, Conway & Holt-Harris, Albany (John T. DeGraff, Jr., Albany, of counsel), for respondents Marcia Codling and another.

Harvey M. Lifset, Albany (Douglas P. Rutnik, Albany, of counsel), for respondent (as plaintiff), Christino Paglia.

Bender, Hesson, Ford & Grogan, Albany (Neil Hesson, Jr., Albany, of counsel), for respondent (as defendant), Christino Paglia.

Before HERLIHY, P.J., and GREENBLOTT, STALEY, SWEENEY and SIMONS, JJ.

STALEY, Justice.

These are appeals by defendant, Chrysler Corporation (1) from a judgment of the Supreme Court in Action No. 1 in favor of plaintiffs Codling, entered November 4, 1970 in Albany County, upon a verdict rendered at Trial Term; and (2) from a judgment of the Supreme Court in Action No. 2 in favor of plaintiff Paglia, entered November 6, 1970, in Albany County, upon a verdict rendered at Trial Term, and (3) from an order of the Supreme Court at Trial Term entered December 22, 1970, in Albany County, which granted a motion by defendant Paglia in Action No. 1 for summary judgment on his cross complaint, and (4) from the judgment entered thereon, and appeal by plaintiffs Codling in Action No. 1 from an order of the Supreme Court at Trial Term, entered January 20, 1971 in Albany County, which denied their motion to set aside that part of the verdict of the jury which found no cause of action based on negligence.

The basic facts herein are not in dispute. On August 2, 1967 defendant Paglia was proceeding in the southbound lane of Route 144 in the Town of Bethlehem, Albany County, driving a 1967 Chrysler automobile which he had purchased in the spring of that year. His speed was approximately 45 to 50 miles per hour. Since its purchase, Paglia had driven it approximately 4,000 miles, and shortly prior to August 2, 1967, it had been inspected by the dealer where it had been purchased. As defendant Paglia was proceeding along Route 144, he traveled along a curve to the left and, as he reached the point where the road straightened, his automobile crossed over into the northbound lane, where his automobile collided headon with an automobile operated by plaintiff Frank Codling, and in which plaintiff Marcia Codling was a passenger. At the time the Paglia automobile crossed over into the northbound lane, the Codling automobile was about 75 yards away.

Prior to the opening of the trial, the Codlings stipulated that their action against Paglia be discontinued on the merits in consideration of the payment by Paglia of the sum of $50,000 each to Frank and Marcia Codling, and they reserved all rights to proceed against Chrysler. Paglia was then removed as a defendant in Action No. 1, but he remained in the trial for the purposes of pursuing his cross claim for recoupment against Chrysler in Action No. 1 and his damage claims against Chrysler in Action No. 2. The cross claim thereafter was severed from the original action for separate determination.

Defendant Paglia was unable to attend the trial since he was hospitalized for reasons unrelated to the accident. In his examination before trial, read into the record, he testified that when his automobile crossed over into the northbound lane, he attempted to steer to the right, but was unable to bring it right; that the power steering locked; that 'it went to the left and I tried to steer to the right and she wouldn't budge, she wouldn't give'. The basic issue involved in the actions against Chrysler is whether or not the power steering pump in the Paglia automobile was defective. Expert witnesses called by the Codlings testified that they performed tests on the pump which determined that it was defective and how this defect related to the accident. Chrysler's experts contested the validity of these tests, and the defectiveness of the pump.

The jury rendered a verdict against Chrysler in favor of Frank Codling in the amount of $150,000, less the $50,000 Paglia settlement; a verdict against Chrysler in favor of Marcia Codling in the amount of $200,000, less the $50,000 Paglia settlement; a verdict against Chrysler in favor of Paglia in the amount of $15,000. In answer to written questions submitted to the jury by the court, the jury found that defendant Chrysler did not negligently manufacture and assemble the Paglia automobile with a defective power assist steering system, but that defendant Chrysler had breached its implied warranty of merchantability and fitness of the Paglia automobile. After the jury verdict, defendant Paglia moved for and obtained summary judgment to recover from Chrysler the $100,000 settlement that he had paid to the Codlings.

Chrysler's first contention on this appeal is that the Codlings, being nonusers of the 1967 Chrysler, cannot recover from Chrysler, the manufacturer, for breach of implied warranty of merchantability and fitness.

In Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81, it was determined that a cause of action exists in favor of third-party strangers to the contract for breach of implied warranty. The language of that case would appear, however, to limit its application to the persons whose use of the manufacturer's product is contemplated. Subsequently, there have been decisions which have refused to recognize that such a cause of action exists in favor of bystanders and strangers injured by the product who were not users thereof. (Berzon v. Don Allen Motors, Inc., 23 A.D.2d 530, 256 N.Y.S.2d 643). In Guarino v. Mine Safety Applicance, 25 N.Y.2d 460, 306 N.Y.S.2d 942, 255 N.E.2d 173, the Court of Appeals, employing the 'danger invites rescue' doctrine, determined that a cause of action existed for breach of implied warranty in favor of parties injured in rescuing a user of a defective product even though they themselves were not injured by the product.

The court stated at page 465, at pages 945, 946 of 306 N.Y.S.2d, at page 176 of 255 N.E.2d:

We conclude that a person who by his culpable act, whether it stems from negligence or breach of warranty, places another person in a position of imminent peril, may be held liable for any damages sustained by a rescuer in his attempt to aid the imperilled victim.

Where a manufacturer's product is of such a character that when used for the purposes for which it is made, it is likely to be a source of danger and injury to several people if not properly fashioned, the manufacturer, as well as vendor, is liable for breach of implied warranty to persons purchasing or using the product and to persons injured rescuing persons using the product. The law, having developed to the point where it is now clear that a breach of implied warranty involving a dangerous instrumentality is a tortious wrong, separate and distinct from a breach of the sales contract (Goldberg v. Kollsman Instrument Corp., Supra), there would appear to be no logic or reason in denying a right to relief to persons injured by a defective dangerous instrumentality solely on the ground that they were not themselves a user of the instrument. The manufacturer of an automobile obviously is aware that such product will be operated on the highways in conjunction with the operation of other automobiles and that a defect in its manufacture might result in danger or injury to such other users of the highways. Manufacturers of articles which may be a source of danger to several people if not properly manufactured should not be immune from liability for breach of implied warranty, a tortious wrong, to persons injured by a defectively manufactured article, where the manufacturer could reasonably contemplate injury to such persons by reason of the defect.

This is the law in other jurisdictions. (See Toombs v. Fort Pierce Gas Co., 208 So.2d 615 (Fla.); Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129; Caruth v. Mariani, 11 Ariz.App. 188, 463 P.2d 83; Elmore v. American Motors Corp., 70 Cal.2d 578, 451 P.2d 84, 75 Cal.Rptr. 652, 33 A.L.R.3d 406; Ford Motor Co. v. Cockrell, 211 So.2d 833 (Miss.); Anno. 33 A.L.R.3d 415.)

In Elmore v. American Motors Corp. (supra) actions for personal injuries and wrongful death were brought by the occupants of another car which had collided with an automobile manufactured by defendant, American Motors Corp., on the ground that the accident had been caused by a defect in the automobile manufactured by American Motors Corp. causing the driver of that automobile to lose control and drive into the path of the other car. The court determined that the defect could have caused the accident and that the defect could have existed at the time of sale. The California Supreme Court unanimously held that an action was available for personal injuries by a bystander against the manufacturer and stated as follows (p. 586, 451 P.2d p. 89, 75 Cal.Rptr. p. 657):

It has been pointed out that an injury to a bystander 'is often a perfectly foreseeable risk of the maker's enterprise, and the considerations for imposing such risks on the maker without regard to his fault do not stop with those who undertake to use the chattel. (A restriction on the recovery by bystanders) is only the distorted shadow of a vanishing privity which is itself a reflection of the habit of viewing the problem as a commercial one between traders, rather than as part of the accident problem. (2 Harper and James, The Law of Torts (1956) p. 1572, fn. 6.)

If anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably...