Guyot v. Al Charyn, Inc., NISSHO-IWAI
| Decision Date | 10 July 1979 |
| Docket Number | NISSHO-IWAI |
| Citation | 417 N.Y.S.2d 941,69 A.D.2d 79 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Frederick GUYOT and Pamela Guyot, Plaintiffs, v. AL CHARYN, INC., York Bros. Wholesale Hardware Co., Defendants-Appellants-Respondents, and Wilmod Company, Inc., Defendant-Respondent. AL CHARYN, INC., Third-Party Plaintiff-Appellant-Respondent, v. JEROME MACKEY'S JUDO, INC., d/b/a Jerome Mackey's Judo School, Third-Party Defendant-Respondent-Appellant. JEROME MACKEY'S JUDO, INC., Fourth-Party Plaintiff, v. Shinichi MIYAZAKI, Fourth-Party Defendant. JEROME MACKEY'S JUDO, INC., Fifth-Party Plaintiff, v.AMERICAN CORP., Fifth-Party Defendant. YORK BROS. WHOLESALE HARDWARE CO., INC., Defendant and Second Third-Party Plaintiff-Appellant, v. GARDINER STEEL CORP., Gardiner Steel Corp., a wholly owned subsidiary of J. Gerber & Co., Inc., and J. Gerber & Company, Inc., Second and Third-Party Defendants-Respondents-Appellants. J. GERBER & COMPANY, INC., Second and Third-Party Defendant, Second and Fourth-Party Plaintiff-Appellant, v. ATAKA AMERICA, INC., Second and Fourth-Party Defendant, and Mitsui & Company, U.S.A., Inc., Second and Fourth-Party Defendant-Respondent. |
Joseph D. Ahearn, New York City, of counsel (J. Robert Morris, New York City, atty.), for defendant-appellant-respondent and third-party plaintiff-appellant-respondent Al Charyn, Inc.
Walter G. Evans, New York City, of counsel (Alfred V. Norton, Jr., New York City, with him on the briefs; Evans, Orr, Pacelli, Norton & Laffan, P. C., New York City, attys.), for defendant-appellant York Bros. Wholesale Hardware Co.
Richard C. Browne, New York City, of counsel (Costello & Shea, New York City, attys.), for second and third-party defendants-respondents-appellants Gardiner Steel Corp., Gardiner Steel Corp., a wholly-owned subsidiary of J. Gerber & Co., Inc., and J. Gerber & Company.
Gerald A. Greenberger, New York City, of counsel (Joseph L. Forstadt, New York City, with him on the brief; Peter M. Pryor, New York City, atty., Stroock & Stroock & Lavan, New York City, appellate counsel), for third-party defendant-respondent-appellant Jerome Mackey's Judo, Inc.
Remo J. Acito, New York City, of counsel (Elinore B. Klein, New York City, with him on the brief; Acito & Klein, P. C., New York City, attys.), for defendant-respondent Wilmod Company, Inc.
William F. McNulty, New York City, of counsel (Anthony J. McNulty, New York City, with him on the brief; John W. McClancy, New York City, atty.), for second fourth-party defendant, Ataka America, Inc.
John T. Hamilton, Jr., Albany, of counsel (Frank E. Maher, New York City, atty.), for second and fourth-party defendant-respondent Mitsui & Company, U.S.A., Inc.
Before SANDLER, J. P., and SULLIVAN, LUPIANO, SILVERMAN and ROSS, JJ.
I agree with Justice Lupiano's conclusions except that I would dismiss the cross-claim against the third party defendant Jerome Mackey's Judo, Inc. and grant 100% Indemnification to the other defendants as against defendant Gardiner-Gerber, thus allocating 100% Of the liability to Gardiner-Gerber.
Justice Sandler suggests that our decision granting 100% Indemnification to the retailer and intermediate wholesaler represents survival of the distortions that existed before the development of the present doctrine of strict products liability, citing Martin v. Dierck Equipment Co., 43 N.Y.2d 583, 590, 403 N.Y.S.2d 185, 188, 374 N.E.2d 97, 100. However, as I think we all agree, while an injured plaintiff's claim based on strict products liability against persons with whom he has no contractual privity is a tort claim, parties like a retailer or intermediate wholesaler may still have a contractual breach of warranty claim against persons with whom they are in contractual privity.
I agree with Justice Lupiano that Miyazaki was an independent contractor and not an employee of Mackey and that thus Mackey is not liable on principles of Respondeat superior to third parties for injuries caused by Miyazaki's negligence in the performance of his work which was not inherently dangerous. The holding by the Workmen's Compensation Board that Mackey was liable to plaintiff-employee as an employer for workmen's compensation under the Workmen's Compensation Law is not necessarily inconsistent with this as the issue is somewhat different. (E. g., Workmen's Compensation Law § 56.)
For the same reason the alleged admission in Mackey's pleadings that plaintiff-employee's injuries "arose out of and in the course of plaintiff's employment for" Mackey does not preclude Mackey's contention that plaintiff was Miyazaki's employee for purposes of third party liability; that pleading admission was made in the course of a counterclaim based on Mackey's payment under the workmen's compensation award.
Justice Lupiano's opinion appears to base Mackey's liability in this case on a finding that Mackey was negligent in hiring Miyazaki because Miyazaki was incompetent to do the work. I do not believe that issue is properly in the case; it was not raised by the pleadings and I do not think it was litigated, nor did the trial judge make such a finding. I therefore think that there is no basis in the present litigation to hold Mackey liable.
The judgment of the Supreme Court, New York County, entered December 23, 1977, in plaintiffs' favor in the sum of $150,000, adjudging second third-party defendants Gardiner Steel Corp. and J. Gerber & Company, Inc. to be liable for 50%, defendant Al Charyn, Inc. to be liable for 20%, defendant York Bros. Wholesale Hardware Co., Inc. to be liable for 20% And third-party defendant Jerome Mackey's Judo, Inc. to be liable for 10%, should be modified, on the law, in the following respects:
A. The apportionment of the percentages of liability among all the defendants in said judgment is stricken;
B. All claims by any defendant against third-party defendant Jerome Mackey's Judo, Inc. for contribution or indemnity, are dismissed; and as among defendants and third and fourth party defendants, no portion of the liability shall be apportioned against said third-party defendant Jerome Mackey's Judo, Inc.;
C. Judgment on the merits is granted in favor of defendant Al Charyn, Inc. on its claim for full indemnity against defendant York Bros. Wholesale Hardware Co., Inc., and in turn judgment on the merits is granted in favor of defendant York Bros. Wholesale Hardware Co., Inc. on its claim for full indemnity against second third-party defendants Gardiner Steel Corp. and J. Gerber & Company, Inc. D. Any defendant or third-party defendant who has paid more than its share of the judgment as adjudicated herein shall be reimbursed therefor by third-party defendants who have paid less than their share thereof;
And the judgment is otherwise affirmed, without costs.
Judgment, Supreme Court, New York County, entered on December 23, 1977, modified, on the law, in the following respects:
A. The apportionment of the percentages of liability among all the defendants in said judgment is stricken;
B. All claims by any defendant against third-party defendant Jerome Mackey's Judo, Inc. for contribution or indemnity, are dismissed; and as among defendants and third and fourth party defendants, no portion of the liability shall be apportioned against said third-party defendant Jerome Mackey's Judo, Inc.;
C. Judgment on the merits is granted in favor of defendant Al Charyn, Inc. on its claim for full indemnity against defendant York Bros. Wholesale Hardware Co., Inc., and in turn judgment on the merits is granted in favor of defendant York Bros. Wholesale Hardware Co., Inc. on its claim for full indemnity against second third-party defendants Gardiner Steel Corp. and J. Gerber & Company, Inc.;
D. Any defendant or third-party defendant who has paid more than its share of the judgment as adjudicated herein shall be reimbursed therefor by third-party defendants who have paid less than their share thereof;
and the judgment is otherwise affirmed, without costs and without disbursements.
All concur except SANDLER and LUPIANO, JJ., who dissent in part in separate Opinions.
During the course of the trial of this negligence action, before a jury and toward the end of plaintiffs' case, the parties stipulated that the masonry nail, a particle of which apparently struck plaintiff Frederick Guyot in an eye, was defective and that plaintiffs have judgment for $150,000. The jury was discharged and the trial proceeded for determination and apportionment of liability among the defendants. Prior to trial, a Workmen's Compensation award was rendered in favor of plaintiff Frederick Guyot, the injured workman, against Jerome Mackey's Judo, Inc., holding the latter to be the employer of said plaintiff. The trial court appropriately found that the accident which occurred on August 14, 1972, was concurrently caused by the failure to observe the precaution of wearing safety goggles while utilizing masonry nails at the work site, the use of defective masonry nails, and the inappropriate use of masonry nails when ceramic tile was involved. Aside from the stipulation that the masonry nail, a piece of which struck plaintiff Frederick Guyot, was defective, there was expert testimony that the defect resided in the design of the nail, to wit, it was too long for its width. Liability was apportioned by the trial court under Dole v. Dow (Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288) for negligence found to exist on the part of Jerome Mackey's Judo, Inc. as employer (10%) and on the part of the retail store from which the nail was purchased, defendant Al Charyn, Inc. (20%), and the suppliers in the chain of commerce, respectively, York Bros. Wholesale Hardware Co. (20%), Gardiner Steel Corp. and J. Gerber & Company, Inc. (50%). The negligence of Jerome Mackey's Judo, Inc. resided in its failure to provide or to advise the use of safety...
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