Frank v. DaimlerChrysler Corp

• Decision Date: 28 March 2002
• Citation: 292 A.D.2d 118,741 N.Y.S.2d 9
• Parties: LINDA FRANK et al., Appellants,<BR>v.<BR>DAIMLERCHRYSLER CORPORATION, Defendant, and FORD MOTOR COMPANY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

292 A.D.2d 118

741 N.Y.S.2d 9

LINDA FRANK et al., Appellants,

v.DAIMLERCHRYSLER CORPORATION, Defendant, and FORD MOTOR COMPANY et al., Respondents.

NARDELLI, J.P.

March 28, 2002.

John M. Mason and Janet Walsh of counsel (Law Offices of Gene Locks, PLLC, and Greitzer & Locks, LLC, attorneys), for appellants.

Martha Dye of counsel (Stuart Bodoff and John H. Beisner on the brief; O'Melveny & Myers, LLP, attorneys), for Ford Motor Company, respondent.

J. Andrew Langan of counsel (Howard Fetner and Douglas M. Poland on the brief; Kirkland & Ellis, attorneys), for General Motors Corporation and another, respondents.

Michael Hoenig of counsel (Hugh F. Young, Jr., and Michael T. Wharton on the brief; Herzfeld & Rubin, P.C., Product Liability Advisory Council, Inc., and Wharton, Levin, Ehrmantraut, Klein & Nash, attorneys), for Product Liability Advisory Council, Inc., amicus curiae.

TOM, SAXE and SULLIVAN, JJ., concur.

OPINION OF THE COURT

NARDELLI, J.P.

In this appeal, we are asked to determine whether the Supreme Court properly dismissed, for failure to state a cause of action, plaintiffs' proposed class action, which is based upon a purported defect in the front seat backrests of certain vehicles.

Plaintiffs commenced this proposed class action in June 1999 on behalf of themselves and all New York residents who own a "Class Vehicle," which includes various specified automobiles manufactured by defendants Ford Motor Company (Ford), General Motors Corporation (General Motors), and Saturn Corporation (Saturn),^[1] between 1993 and 1998. The class, as defined by plaintiffs, is estimated at 1,000,000 people and specifically excludes those individuals who allegedly suffered personal injuries as a result of the claimed "defect." The defect is defined by plaintiffs as a design utilizing a "single recliner mechanism" (SRM), which is a manually adjustable lever that fixes the angle of the seat backrest, and which is located only on the outboard side of the front seats.

Plaintiffs aver that the backrest, as designed, is unreasonably dangerous because "it is unstable and susceptible to rearward collapse in the event of a rear-end collision," in that if a Class Vehicle is struck from the rear by another vehicle "the force of the occupant's body against the backrest of the seat can result in the rearward collapse of the backrest," which in turn "can result * * * in neck and back injuries, paraplegia, quadriplegia, and even death." Plaintiffs further maintain that the seat defect was aggravated by certain additional design flaws, and that defendants knew or should have known of the hazardous condition, yet "made a conscious and deliberate decision" against implementing an improved design, which would have included an additional recliner mechanism on the inboard side of the seats.

Plaintiffs continue that defendants "knowingly and intentionally concealed from the public the foreseeable risk of harm from seat collapses" and that as a result, plaintiffs "suffered economic loss" in that the Class Vehicles and seats did not meet reasonable consumer expectations and posed an unreasonable risk of serious injury or death in the event of a rear-end collision. Plaintiffs maintain that class members were therefore compelled to "incur the expense of alternate transportation, or the expense of correcting the Defect."

Plaintiffs sought compensatory damages "measured by the cost of correcting the Defect, not to exceed $5,000 for each Class Vehicle," and interposed seven causes of action sounding in, respectively: (1) negligence; (2) strict liability; (3) breach of the implied warranty of merchantability; (4) negligent concealment and misrepresentation; (5) fraud; (6) unfair or deceptive business practices in violation of General Business Law §§ 349 and 350; and (7) civil conspiracy. Ford, General Motors and Saturn subsequently moved to dismiss the complaint for failure to state a cause of action and failure to state the fraud claims with sufficient particularity. The motion court, in an order entered on or about May 30, 2000, granted the motions and dismissed the complaint in its entirety. Plaintiffs appeal and we now affirm.

It is well established that in determining whether to grant a motion to dismiss based upon a failure to state a cause of action pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction (CPLR 3026), and the court should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88; Morone v Morone, 50 NY2d 481, 484; Sotomayor v Kaufman, Malchman, Kirby & Squire, 252 AD2d 554; Fischbach & Moore v E.W. Howell Co., 240 AD2d 157). Stated another way, the court's role in a motion to dismiss is limited to determining whether a cause of action is stated within the four corners of the complaint, and not whether there is evidentiary support for the complaint (Bernstein v Kelso & Co., 231 AD2d 314, 318; LoPinto v J.W. Mays, Inc., 170 AD2d 582, 583).

In view of the foregoing, and as the motion court correctly found, plaintiffs must plead actual injuries or damages, resulting from defendants' conduct, as an essential element of each of the first six causes of action. See, e.g., negligence (Becker v Schwartz, 46 NY2d 401, 410; Merino v New York City Tr. Auth., 218 AD2d 451, 457, affd 89 NY2d 824); strict liability (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 110; De Matteo v Big V Supermarkets, 204 AD2d 932); breach of implied warranty^[2] (Winckel v Atlantic Rentals & Sales, 159 AD2d 124; Finkelstein v Chevron Chem. Co., 60 AD2d 640, 641, lv denied 44 NY2d 641); negligent misrepresentation (Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536; Tajan v Pavia & Harcourt, 257 AD2d 299, 304, lv dismissed in part and denied in part 94 NY2d 837; PJI 2:230 [2001]); fraud (Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407; Cohen v Houseconnect Realty Corp., 289 AD2d 277); and General Business Law §§ 349 and 350 (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25-26; Scott v Bell Atl. Corp., 282 AD2d 180, 183-184, lv granted in part and dismissed in part 97 NY2d 698).

Plaintiffs herein, with regard to the issue of damages, have, as previously noted, specifically excluded from the putative class "all persons who have suffered personal injury as a result of the rearward collapse of a seat." Indeed, plaintiffs do not allege that they have been in the type of accident that allegedly triggers the defect; that the seat back in any of the vehicles they own had, in fact, collapsed; or that they have suffered an injury as the result of the anticipated malfunction. In sum, plaintiffs maintain that if their vehicles were to become involved in accidents, and if the accidents were rear-end collisions, and if the accidents were severe enough, their front seats might deform or collapse rearward and, consequently, the hypothetical malfunction might cause them to be injured. Thus, while plaintiffs claim that the defect is "presently manifested," they essentially argue that the breach of duty, the purported design defect, is itself the injury, and their damages as well, as they do not allege any actual malfunction.

Plaintiffs' claims, which defendants characterize as "tendency to fail" types of claims, have been addressed, in one form or another, by the United States District Court for the Southern District of New York, as well as a number of other courts in various jurisdictions. In Feinstein v Firestone Tire & Rubber Co. (535 F Supp 595 [SD NY 1982]), plaintiff interposed causes of action sounding in breach of implied warranty of merchantability, strict liability, negligence, reckless disregard, fraud and deceit, arising out of allegations that defendant's "Firestone 500" steel-belted radial tires "`will suffer blowouts, tread separation and chunking, steel belt separation, or shifting, bead distortion, sidewalk blisters and cracks, and out of round conditions.'" (Id. at 601.) Plaintiffs, as a result of the foregoing, sought "`replacement on a fairly adjusted basis of all Radial 500 tires * * * with steel-belted radial tires which are safe and free of defects or the equivalent in dollars'" (id. at 599).

The District Court, in addressing motions for class certification, held that those plaintiffs whose tires had not malfunctioned could not maintain a cause of action for breach of implied warranty of merchantability since "[t]ires which lived full, productive lives were, by demonstration and definition, `fit for the ordinary purposes' for which they were used; hence they were `merchantable' under U.C.C. § 2-314" (id. at 602). Plaintiffs, in other words, failed to establish the necessary element of damage, and the court rejected plaintiffs' argument "that a `common' defect which never manifests itself `ipso facto caused economic loss' and breach of implied warranty" (id. at 603), notwithstanding the fact that reports by the National Highway Traffic Safety Administration (NHTSA), and the House Committee on Interstate and Foreign Commerce, indicated that some of the tires had failed, or the fact that other complainants had commenced actions for actual injury or death, or that Firestone had entered into a voluntary recall program concerning the tires in question. The court further opined that "[l]iability does not exist in a vacuum; there must be a showing of some damage, which then may lead to further issues of quantum" (id. at 602). The court, in conclusion, declined to certify the proposed class with respect to the remaining causes of action for the very same reasons.

In Weaver v Chrysler Corp. (172 FRD 96 [SD NY]), allegedly defective integrated child safety seats, the shoulder clips of which purportedly unlatched and separated, gave rise to a putative class action, under the theories of fraud, negligent...