Holloway v. Willette Corp. NJ

• Decision Date: 21 November 2000
• Citation: 720 N.Y.S.2d 646,280 A.D.2d 876
• Parties: (A.D. 3 Dept. 2001) BRIAN D. HOLLOWAY et al., Appellants, v. WILLETTE CORPORATION OF NEW JERSEY et al., Respondents, et al., Defendant. 87741 Calendar Date:
• Court: New York Supreme Court — Appellate Division

Page 646

720 N.Y.S.2d 646 (A.D. 3 Dept. 2001)

BRIAN D. HOLLOWAY et al., Appellants, v. WILLETTE CORPORATION OF NEW JERSEY et al., Respondents, et al., Defendant.

87741

SUPREME COURT, APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT

Calendar Date: November 21, 2000

Decided and Entered: February 22, 2001

Lisa A. Alexander, Albany, for appellants.

Edward Flink & Associates (Aaron R. Anderson of counsel), Latham, for Willette Corporation of New Jersey, respondent.

Ryan & Smallacombe L.L.P. (Melissa J. Smallcombe of counsel), Albany, for Scott's Inside Out Decorating Center, respondent.

Before: Mercure, J.P., Peters, Carpinello, Mugglin and Rose, JJ.

Rose, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered November 3, 1999 in Rensselaer County, which granted motions by defendants Willette Corporation of New Jersey and Scott's Inside Out Decorating Center for summary judgment dismissing the complaint against them.

Plaintiff Brian D. Holloway (hereinafter plaintiff) was raising himself from a sitting position in order to get out of his bathtub when he broke a wall-mounted ceramic soap dish, which he allegedly was using only to balance himself, causing him to fall back down into the bathtub and lacerate a finger on the edge of the broken soap dish. Defendant Scott's Inside Out Decorating Center had supplied and installed the soap dish, manufactured by defendant Willette Corporation of New Jersey, in the course of replacing the ceramic tile in plaintiff's bathroom. Plaintiffs commenced this action alleging that defendants were liable for negligence, strict products liability and breach of warranty for the manufacture and installation of the soap dish. When Scott's and Willette (hereinafter collectively referred to as defendants) moved for summary judgment dismissing the complaint, Supreme Court granted their motions finding that, inter alia, plaintiffs failed to present any evidence that the soap dish was defective and that such defect, rather than plaintiff's conscious misuse of the soap dish as a handhold, was the proximate cause of his injury.

Plaintiffs appeal, contending that liability arises not from a defect in the soap dish or defendants' failure to warn that it was not a handhold, but from Willette's failure to warn plaintiff and Scott's that the soap dish was intended only for use over a sink, and that this failure was a cause of plaintiff's injury because Scott's would not have installed the soap dish over the bathtub if such a warning had been given. As to Scott's, plaintiffs argue that liability arises from its negligence in installing a sink model soap dish over the bathtub. Through the affidavit of their materials engineering expert, plaintiffs assert that the pressure that plaintiff applied would not have resulted in breakage and injury if Willette's bathtub model soap dish had been installed instead because the average force necessary to break the bathtub model was 428 pounds compared to 210 pounds for the sink model.

Since no manufacturing defect is alleged to explain the inconsistency between plaintiff's claim that he put only slight pressure on the soap dish immediately before it fractured and his expert's proof that an average of 210 pounds was required to break other samples of Willette's sink model soap dish, and since plaintiff admitted that he knew the soap dish was not a handle, the record establishes that plaintiff consciously misused the soap dish in trying to balance or support himself. However, the record also contains evidence...