Halloran v. Virginia Chemicals Inc.

• Decision Date: 22 February 1977
• Citation: 41 N.Y.2d 386,393 N.Y.S.2d 341,361 N.E.2d 991
• Parties: , 361 N.E.2d 991 Frank HALLORAN et al., Respondents, v. VIRGINIA CHEMICALS INCORPORATED, Appellant, and A & E Auto Glass & Service Corporation, Respondent. VIRGINIA CHEMICALS INCORPORATED, Third-Party Plaintiff-Appellant, v. CROWN CAN COMPANY et al., Third-Party Defendants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 341

393 N.Y.S.2d 341

41 N.Y.2d 386, 361 N.E.2d 991

Frank HALLORAN et al., Respondents, v. VIRGINIA CHEMICALS INCORPORATED, Appellant, and A & E Auto Glass & Service Corporation, Respondent.

VIRGINIA CHEMICALS INCORPORATED, Third-Party Plaintiff-Appellant, v. CROWN CAN COMPANY et al., Third-Party Defendants-Respondents.

Court of Appeals of New York.

Feb. 22, 1977.

James M. O'Brien, Rockville Centre, for appellant.

Hubert F. Sullivan, Jamaica, for Frank Halloran and another, respondents.

John J. Moore, New York City, for A & E Auto Glass & Service Corp., respondent.

William F. McNulty, Joseph F. Onorato and Anthony J. McNulty, New York City, for Crown Can Co., third-party defendant-respondent.

Joseph D. Ahearn and J. Robert Morris, New York City, for Irving Frank, third-party defendant-respondent.

BREITEL, Chief Judge.

Defendant Virginia Chemicals appeals in a personal injury products liability action. Plaintiff Frank Halloran, an automobile mechanic, obtained a verdict in his favor, after a jury trial on the issue of liability only, for injuries he sustained while using a can of refrigerant packaged and sold by the chemical company. A divided Appellate Division affirmed, and certified a question of law for review in this court. ^*

The principal issue argued by defendant Virginia Chemicals is that plaintiff failed to make out a prima facie case because no particular defect in the packaged refrigerant was ever discovered or established. That issue merits little discussion. In a products liability case it is now established that, if plaintiff has proven that the product has not performed as intended and excluded all causes of the accident not attributable to defendant, the fact finder may, even if the particular defect has not been proven, infer that the accident could only have occurred due to some defect in the product or its packaging (see Codling v. Paglia, 32 N.Y.2d 330, 337--338, 345 N.Y.S.2d 461, 464--465, 298 N.E.2d 622, 625--626; Fogal v. Genesee Hosp., 41 A.D.2d 468, 478, 344 N.Y.S.2d 552, 563; see, generally, 47 N.Y.Jur., Products Liability, §§ 14, 18).

There is one other issue meriting extended discussion: whether evidence that the injured mechanic had previously used an immersion heating coil to heat the can of the refrigerant should be admissible to show that on the particular occasion he was negligent and ignored the labeled warnings on the can. Evidently relying on the rubric excluding prior instances of carelessness to create an inference of carelessness on a particular occasion, both the Trial Judge and the Appellate Division, save for two dissenting Justices, agreed that such evidence was not admissible.

There should be a reversal and a new trial. If plaintiff, when necessary to stimulate the flow of the refrigerant, a highly compressed liquefied gas, habitually or regularly used an immersion coil to heat the water in which the container was placed, evidence of that habit or regular usage should be admissible to prove he followed such a procedure on the day of the explosion. Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct. On this view, the excluded evidence was offered to show a particular method of executing a task followed by the mechanic, who, on his own testimony, had serviced 'hundreds' of air-conditioning units and used 'thousands' of cans of the refrigerant. If on remittal the evidence tends to show that the mechanic used an immersion coil a sufficient number of times to warrant a finding of habit, or regular usage, it would be admissible to aid the jury on its inquiry whether he did so on the occasion in question.

On June 1, 1970, the day of the accident, Frank Halloran, a mechanic for 15 years, had been employed by the Hillcrest Service station for over three years. Among his duties was the servicing and charging of automobile air-conditioning units, a job for which he had been specially trained, and for which he used 'all (his) own tools.' The particular task involved that day was the changing of the air-conditioning compressor on a 1967 Chrysler automobile. Plaintiff testified that he had emptied the system, removed the old compressor, and installed a new one. He then began to charge the unit.

The first two cans of the refrigerant, Freon, flowed into the system without difficulty. By the time he was emptying the third can, however, plaintiff found it necessary to accelerate the flow of the refrigerant. The mechanic described how he filled an empty two-pound coffee tin with warm tap water, used a thermometer to determine that the water temperature was about 90 to 100 degrees, and inserted into the coffee tin the third can of Freon. Having a similar problem with the flow of the fourth can, Halloran again dropped the Freon into the warm water. Noticing that his low pressure gauge showed a rapid increase in the pressure, and aware that 'something was wrong', Halloran reached down to remove the can from the water, but was too late. The can exploded before he could touch it.

Neither the thermometer Halloran claimed to have used nor the bottom of the exploded can of Freon was produced at trial. Halloran knew that excessive heating of the can would cause damage, and that the warnings on the can specified 130 degrees as the maximum permissible safe temperature. As discussed earlier, he proved no particular defect in the can, its contents, or in so much of the exploded can which was produced at the trial. Having worked alone that day, Halloran was the only eyewitness to the explosion.

Defendant Virginia Chemicals, on cross-examination of Halloran and on its defense, sought to establish that it was Halloran's 'usage and practice' to use an immersion coil to heat the water in which the Freon was placed. Halloran denied ever making such use of an immersion coil. But defendant offered a witness prepared to testify not only that he had seen Halloran on previous occasions using an immersion coil to heat Freon, but that he had warned plaintiff of the danger as well. Plaintiff, relying on the rule that extrinsic evidence cannot be introduced to impeach a witness on collateral matters, objected to the admissibility of such testimony. The Trial Judge sustained the objection.

Of course, had an immersion heating coil been used at the time of the accident the unexplained and thus far unexplainable explosion would have been fully explained.

Were the evidence defendant sought to produce collateral, defendant generally would be bound by plaintiff's denial. For it is now well settled that extrinsic evidence introduced solely to impeach credibility on a collateral issue is, with special exceptions, inadmissible (People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 820, 247 N.E.2d 642, 644; Potter v. Browne, 197 N.Y. 288, 293, 90 N.E. 812, 814; Richardson, Evidence (10th ed.), § 491).

To be sure, Halloran's practice prior to June 1, 1970 is not conclusive proof of the method he employed in working on the 1967 Chrysler. 'Collateral', however, it is not. Logically probative it is and ought to be. While courts of this State have in negligence cases traditionally excluded evidence of carefulness or carelessness as not probative of how one acted on a particul occasion, in other cases evidence of a consistent practice or method followed by a person has routinely been allowed (compare, e.g., Zucker v. Whitridge, 205 N.Y. 50, 58--66, 98 N.E. 209, 210--213 (carefulness), and Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (carelessness), with People v. Bombard, 5 A.D.2d 923, 172 N.Y.S.2d 1, cert. den., 358 U.S. 849, 79 S.Ct. 75, 3 L.Ed.2d 83, (prosecutor's practice of insisting defendant be advised of right to counsel)). That a kind of habit, practice, or method was proffered in this case to establish negligence should not, without more, affect its admissibility.

Because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again, evidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions (e.g., Miller v. Hackley, 5 Johns. 375, 384; 1 Wigmore, Evidence (3d ed.), § 92; Richardson, Evidence (10th ed.), § 185; Fed.Rules Evidence, rule 406 (in U.S.Code, tit. 28, Appendix); see, generally, Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39). Hence, a lawyer, to prove due execution of a will, may testify that he always has wills executed according to statutory requirements (Matter of Kellum, 52 N.Y. 517, 519--520). So too, to prove that notice is mailed on a specified day of the month, one is allowed to testify that he is in the habit of being home on that day of the month to transact such business (Beakes v. Da Cunha, 126 N.Y. 293, 298, 27 N.E. 251, 252).

When negligence is at issue, however, New York courts have long resisted allowing evidence of specific acts of carelessness or carefulness to create an inference that such conduct was repeated when like circumstances were again presented (e.g., Warner v. New York Cent. R.R. Co., 44 N.Y. 465, 472; Grenadier v. Surface Transp. Corp. of N.Y., 271 App.Div. 460, 461, 66 N.Y.S.2d 130, 131; Lefcourt v. Jenkinson, 258 App.Div. 1080, 18 N.Y.S.2d 160; Richardson, Evidence, § 186; Fisch, New York Evidence, § 202; cf. Cabezudo v. New York's Eldorado, 50 A.D.2d 794, 795, 378 N.Y.S.2d 75, 77). Hence, evidence of a plaintiff's habit of jumping on streetcars may not be offered to prove he was negligent on the day of the...