Farina v. Niagara Mohawk Power Corp.

• Decision Date: 16 April 1981
• Citation: 81 A.D.2d 700,438 N.Y.S.2d 645
• Parties: , 31 UCC Rep.Serv. 28 Carolyn S. FARINA, Individually and as Administratrix of the Estate of Peter James Farina et al., Respondents, v. NIAGARA MOHAWK POWER CORPORATION, Appellant, and Radio Shack--A Division of Tandy Corp., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 645

438 N.Y.S.2d 645

81 A.D.2d 700, 31 UCC Rep.Serv. 28

Carolyn S. FARINA, Individually and as Administratrix of the Estate of Peter James Farina et al., Respondents, v. NIAGARA MOHAWK POWER CORPORATION, Appellant, and Radio Shack--A Division of Tandy Corp., et al., Defendants.

Supreme Court, Appellate Division,

Third Department.

April 16, 1981.

Maynard, O'Connor & Smith, Schenectady (J. Vincent Smith, Schenectady, of counsel), for appellant.

Grasso, Rodriguez, Putorti & Grasso, Schenectady (Hazel R. Rodriguez, Schenectady, of counsel), for respondents.

Before MAIN, J. P., and CASEY, YESAWICH, HERLIHY and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered June 13, 1980 in Schenectady County, which denied the motion of defendant Niagara Mohawk Power Corporation to dismiss plaintiffs' causes of action in breach of warranty and strict products liability.

On December 13, 1978, the decedent visited premises designated 1009-1011 Congress Street in Schenectady. The premises were owned by defendants Unberto and Amerina Paniccia and leased to defendant William Vrooman, Sr. During the visit, decedent proceeded to assist Vrooman in the removal of a CB antenna from the upper portion of the aforementioned premises. At some point during the process, the antenna was caused to come into contact with overhead lines of the Niagara Mohawk Power Corporation (hereafter Niagara Mohawk) resulting in decedent's death. Plaintiff, having been duly issued letters of administration, commenced this action on behalf of decedent's estate and on her own behalf. The complaint alleges causes of action in negligence, strict products liability, breach of warranty and nuisance. Defendant Niagara Mohawk moved to dismiss the causes of action for strict products liability and breach of warranty. Special Term denied the motion and this appeal ensued. We conclude that there must be a reversal.

New York's doctrine of strict products liability generally follows the guidelines set forth in the Restatement, Torts 2d, § 402 A, which casts liability on one who "sells any product in a defective condition * * *." Some expansion of the doctrine has occurred. In Delaney v. Towmotor Corp., 339 F.2d 4, 6, the Second Circuit reasoned that a manufacturer who "placed a defective article in the stream of commerce" should not escape liability simply because it had not sold the article. Similarly, in Nastasi v. Hochman, 58 A.D.2d 564, 396 N.Y.S.2d 216, the Second Department has indicated that given the right set of circumstances the doctrine might apply to the lessor of a defective product. Despite the limited expansion of the doctrine, we find no case in this or any other jurisdiction which has permitted a plaintiff to recover for injuries sustained from contact with an electrical line on the theory of strict products liability. The courts' resistance to the application of the doctrine is based upon a variety of reasons: electricity is not in a marketable state and the doctrine was not intended to apply in such cases (Genaust v. Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d 465); claimed defects in the cable carrying the electrical current are insufficient to establish liability because the cable is not "packaging" for the current, is not sold to the consumer, and remains owned by and under the control of the utility (Cratsley v. Commonwealth Edison Co., 38 Ill.App.3d 55, 347 N.E.2d 496); until actually delivered, the electricity has not been placed in the "stream of commerce" (Petroski v. Northern Indiana Public Service Co., 354 N.E.2d 736 a defect in the manufacture of the electricity or in the manufacture or design of the wire itself, not merely its location, must be shown (Erwin v. Guadalupe Valley Electric Co-op., 505 S.W.2d 353 Furthermore, throughout the discussions in the commentaries and the cases dealing with the claims of those who have been injured through contact with electrical lines, there is the implicit suggestion that electricity, "a subtle agency that pervades all space and evades successful definition * * *" (Ballantine's Law Dictionary), is not a product within the contemplation of the doctrine's authors. Additionally, we note the inapplicability of the strict liability doctrine. Finding its genesis in Rylands v. Fletcher (L.R. 3 H.L. 330), that doctrine was imposed where there was found to be "ultrahazardous" activity, now denominated ...