Doyle v. Happy Tumbler Wash-O-Mat, Inc., WASH-O-MA

• Decision Date: 20 December 1982
• Docket Number: WASH-O-MA,INC
• Citation: 457 N.Y.S.2d 85,90 A.D.2d 366
• Parties: Delores DOYLE, Plaintiff, v. HAPPY TUMBLER, Defendant-third-party plaintiff-respondent, et al., defendant; Wascomat of America, Inc., Appellant, et al., third-party defendant.
• Court: New York Supreme Court — Appellate Division

Page 85

457 N.Y.S.2d 85

90 A.D.2d 366

Delores DOYLE, Plaintiff, v. HAPPY TUMBLER WASH-O-MAT, INC., Defendant-third-party

plaintiff-respondent, et al., defendant;

Wascomat of America, Inc., Appellant, et al., third-party defendant.

Supreme Court, Appellate Division,

Second Department.

Dec. 20, 1982.

Howard S. Davis, New York City (Richard Fedrow, New York City, of counsel), for appellant.

Rivkin, Leff, Sherman & Radler, Garden City (John F. Morrison, Garden City, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, BRACKEN and BOYERS, JJ.

BRACKEN, Justice.

In an action to recover damages for personal injuries, third-party defendant Wascomat of America, Inc. (Wascoma appeals from an order which denied its motion pursuant to CPLR 3211 (subd. [a], par. 7) to dismiss the third-party plaintiff's second cause of action based upon the doctrine of strict products liability and also that part of the first cause of action based upon implied warranty, upon which the third-party plaintiff seeks indemnification and contribution. We affirm.

Plaintiff, injured on September 28, 1978 by a washing machine located at the premises of defendant Happy Tumbler Wash-O-Mat, Inc. (Tumbler) commenced an action for personal injuries in or about January, 1979 against Tumbler, operator of the laundromat, and Donald Anzalone, owner-lessor of the facility, based upon the alleged negligence of the defendants. Tumbler commenced a third-party action in April, 1980 against Wascomat, manufacturer of the washing machine, and Super Equipment Corporation, the distributor which sold the washing machine to defendant Tumbler. Tumbler, in the third-party action, seeks indemnification and contribution for any judgment granted to the plaintiff against it, and alleges the liability of the third-party defendants as follows: (1) negligence and breach of implied warranty of fitness based upon the manufacture and sale of the defective washing machine prior to September 28, 1978, the date plaintiff was injured, and (2) strict products liability.

Special Term concluded that under the provisions of CPLR article 14, a tort-feasor may claim contribution from another person who may be subject to liability for damages for the same injury under any theory of liability that plaintiff could have asserted against that person but had not done so. We agree.

On this appeal Wascomat contends that the doctrine of strict products liability is inapplicable as a matter of law in the case of a Dole claim by a nonuser tort-feasor against a products defendant, because the tort-feasor seeks recovery for economic loss and not for personal injury. In addition, Wascomat contends that the failure to allege privity between Tumbler, the third-party plaintiff, and the third-party defendant Wascomat, renders the warranty cause of action defective, and further that Tumbler is not in privity with Wascomat.

Wascomat's final assertion is that the plaintiff does not possess a cause of action against it for breach of implied warranty because she lacks privity with Wascomat (see Martin v. Dierck Equip. Co., 43 N.Y.2d 583, 403 N.Y.S.2d 185, 374 N.E.2d 97, which involved facts arising before the amendment to § 2-318 of the Uniform Commercial Code, effective September 1, 1975).

Since the theory of liability is irrelevant to Tumbler's right to seek contribution from Wascomat pursuant to CPLR article 14, we conclude that it is the fact of liability to the same person for the same harm, rather than the legal theory upon which liability is based, which controls (Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 398 N.Y.S.2d 401, 368 N.E.2d 24; Nassau Roofing & Sheet Metal Co. v. Celotex Corp., 74 A.D.2d 679, 424 N.Y.S.2d 786; McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C1401:4, p. 363). We further determine that section 2-318 of the New York Uniform Commercial Code, as amended, does not require privity between the ultimate user, plaintiff, and the manufacturer, Wascomat.

Since it is conceded that the plaintiff would have a cause of action in strict products liability against the manufacturer, Wascomat, then it must follow that Tumbler may seek contribution from Wascomat. Tumbler correctly asserts that the third-party action is not for consequential economic loss (see Schiavone Constr. Co. v. Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322), but for contribution.

A cause of action for strict products liability, which developed from the manufacturer's common law duty of due care in making and marketing goods, provides a remedy for an individual injured because of another's violation of an obligation imposed not by contract, but by law, and privity is not a condition for recovery of damages. Such an action sounds in tort rather than in contract (Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275; Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622) and except for the extended four-year Statute of Limitations applicable to an action based upon section 2-318 of the Uniform Commercial Code, an action for strict products liability has displaced the need for a warranty action by an injured party.

Section 2-318 of the Uniform Commercial Code, as originally enacted, effective September 27, 1964, and prior to the recognition of the doctrine of strict products liability, created a contractual remedy based upon the contract between the buyer and seller inuring to the benefit of persons described in section 2-318, namely:

"Any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods".

This legislation codified the existing sales law warranty action and included recovery for common law warranty recognized in Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81.

Subsequent to the application of the doctrine of strict products liability in New York, the Legislature amended section 2-318, effective September 1, 1975, to provide that any natural person who may be expected to "use, consume or be affected by the goods" shall be a third-party beneficiary to any warranties created by the sale, be they express or implied, and be they entered into voluntarily or imposed by operation of law. As a third-party beneficiary, anyone who falls within the protected class may, therefore, pursuant to section 2-318, as amended, commence a direct action for breach of warranty against the seller. In essence this statutory amendment expanded the availability of a breach of warranty action to all those who could foreseeably be affected by the product.

Section 2-318, as amended, was originally...