Dickey v. Lockport Prestress, Inc.
| Decision Date | 28 May 1976 |
| Docket Number | No. 1,1 |
| Parties | , 20 UCC Rep.Serv. 73 Leon DICKEY and Rhoena Dickey, Respondents, v. LOCKPORT PRESTRESS, INC., Appellant, Erdman Anthony Assoc., et al., Defendants. Appeal |
| Court | New York Supreme Court — Appellate Division |
Harris, Beach & Wilcox, Paul R. Braunsdorf, Rochester, for appellant.
Chamberlain, D'Amanda, Bauman, Chatman & Oppenheimer, Michael T. Harren, Rochester, for respondents.
Before MARSH, P.J., and SIMONS, MAHONEY, DILLON and WITMER, JJ.
In these two actions the plaintiffs allege that on July 22, 1975 Eugene McClain and Leon Dickey were employed by Rochester Floors, Inc., a subcontractor engaged in installing concrete products of defendant Lockport Prestress, Inc. in the construction of a new school; that Eugene McClain suffered fatal injuries and Leon Dickey suffered severe personal injuries when defendant's concrete products failed and they fell to the ground.
Plaintiffs allege causes of action in negligence, strict products liability and breach of warranty, the latter two combined in the third and fourth causes of action. Defendant Lockport moves to dismiss these third and fourth causes of action. It concedes that the strict liability cause of action may stand, if properly pleaded, but maintains that unless plaintiffs are able to satisfy the requirements of UCC 2--318, it may not seek to recover on the theory of breach of implied warranty of fitness and merchantability and also on the theory of strict products liability in tort inasmuch as the two theories are, in effect, the same cause of action (see Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275).
At the time of the accident UCC 2--318 provided a right of recovery for breach of warranty to family members and household guests of the buyer, and concededly this claim may not be maintained under the statute as it then existed (the section has been broadened by the amendment effective September 1, 1975, L.1975, c. 774). However, the statute is not the exclusive source of warranty liability (see UCC 2--318 Comment 3; and see Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207 dissent, Breitel, J., p. 352, 305 N.Y.S.2d p. 500, 253 N.E.2d p. 214). Thus, it was that the rule of strict products liability, first stated definitively in Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622, developed gradually as an extension of the implied warranty liability for remote users (see Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81; Randy Knitwear v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399; Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773). But as those cases suggested, and Codling v. Paglia (...
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...not believe Johnnie Knox may take advantage of section 2-318's provision to become such a beneficiary. See Dickey v. Lockport Prestress, Inc. (1976), 52 A.D.2d 1075, 384 N.Y.S.2d 609. In view of our holding that section 2-318 is inapplicable to the present case since Johnnie Knox does not q......
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