Howard v. Poseidon Pools, Inc.
| Decision Date | 26 August 1986 |
| Docket Number | N-R |
| Citation | 506 N.Y.S.2d 519,133 Misc.2d 43 |
| Court | New York Supreme Court |
| Parties | Brent HOWARD and Pamela Howard, Plaintiffs, v. POSEIDON POOLS, INC., S & V Pools, Inc., Trading as Poseidon Pools, Inc., Gibraltar Industries, Inc., Recreational Distributor Warehouse, Inc., George Tassone, National Spa and Pool Institute and Home-oam Leisures, Inc., Defendants. |
Dwyer & Dwyer, P.C., Olean, for plaintiffs.
Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P.C., Buffalo, for defendants Poseidon Pools, Inc. and Gibraltar Corp. of America.
Dixon & DeMarie, P.C., Buffalo, for defendant Recreational Distributor.
Shane & Franz, Olean, for defendants Tassone and S & V Pools, Inc.
Damon & Morey, Buffalo, for defendant Nat. Spa & Pool Institute.
Cohen, Lombardo, Blewett, Fisher, Spandau & Nosek, Buffalo, for defendant, Home-N-Roam Leisures, Inc.
By appropriate motion the plaintiffs seek to amend their complaint to assert a cause of action provided for under the Federal Consumer Product Safety Act.
Such act sets forth that its purpose is to protect the public against unreasonable risks of injury and to assist consumers in evaluating the comparative safety of consumer products, in addition to developing uniform safety standards and promoting research and investigation into the causes and prevention of product-related death, illnesses and injuries. See C.P.S.A. 15 U.S.C. 2051(b).
Relevant here is the fact that the Consumer Product Safety Act contains provisions for disclosure. Sec. 2064 of Title 15 U.C.S. provides in subparagraph (b) that a manufacturer, distributor or retailer of a consumer product must inform the Consumer Product Safety Commission when it "obtains information which reasonably supports the conclusion that such product ... (1) fails to comply with an applicable consumer product safety rule; or (2) contains a defect which would create a substantial product hazard described in subsection (a)(2)." Recourse to subsection (a)(2) discloses that it describes "(2) a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public."
Formed under this act, and pursuant to authority contained therein, the Consumer Product Safety Commission has adopted a number of regulations, among which are requirements for substantial product hazard reports. See 16 C.F.R. (Code Federal Regulations) Part 1115.
The regulation contained in 16 C.F.R. 1115.12(c) is important to the motion at bar. It provides that information by a manufacturer, distributor or retailer indicating that a defect in a consumer product "has caused, may have caused, or contributed to the causing or could cause or contribute to the causing of a death or grevious bodily injury ... must be reported ..." Italics added.
Various provisions for enforcement of the provisions of the Consumer Product Safety Act are provided in the act. Among these and relevant here are the provisions contained in Sec. 2072 (See 15 U.S.C. 2072). That section provides for litigation. Specifically it states:
"Any person who shall sustain injury by reason of any knowing (including wilful) violation of a consumer product safety rule, or any other rule or order issued by the commission may sue any person who knowingly (including wilfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found or has an agent ..." Italics added.
The same section (i.e., 15 U.S.C. [2072] states that in addition to the right to recover for "damages sustained," the party may if the court determines it to be in the interest of justice, also recover "the costs of suit, including reasonable attorneys' fees ... and reasonable expert witness' fees; Provided, That the matter in controversy exceeds the sum or value of $10,000 ..." Italics added.
It is readily apparent that the statutory action with right of recovery of attorneys fees and expert witnesses fees, if it is available, provides for relief broader than that available under the typical New York cause of action for negligence, strict products liability or fraud.
For determination are the following two questions. Does Sec. 2072 of Title 15 U.S.C. authorize a statutory cause of action by an individual? If Sec. 2072 of Title 15 U.S.C. authorizes such an action by an individual, may the same be properly pursued in the state courts of the State of New York?
Plaintiffs contend that the decision of Young v. Robertshaw Controls Co. decided by the Third Department November 15, 1984 and reported at 104 A.D.2d 84, 481 N.Y.S.2d 891, in an opinion of Justice Yesawich is authority for their right to commence and pursue a statutory cause of action under Sec. 2072 of Title 15 U.S.C. With this contention, this court disagrees.
The Appellate decision in Young v. Robertshaw Controls Co., 104 A.D.2d 84, 481 N.Y.S.2d 891 must be read in concert with the decision of the trial court sitting in Special Term. There on a motion to amend a complaint the trial Justice (Edmund L. Shea, J.) stated:
Young v. Robertshaw Controls Co., 123 Misc.2d 580 at 583 .
To this contention of the plaintiff the trial court (Special Term) held as follows:
"The court holds that plaintiff, as an injured member of the public, may assert a private cause of action sounding in fraud for damages as a result of injuries attributable to Robertshaw's alleged fraud upon the public and the CPSC."
Young v. Robertshaw Controls Co., 123 Misc.2d 580 at 585 .
Note is pointedly made that Special Term did not definitively hold that the plaintiff could assert the statutory cause of action provided for under Sec. 2072 of Title 15 U.S.C. Rather the holding was of the right of the plaintiff to plead "a private cause of action sounding in fraud ..." although such action was for injuries "attributable to Robertshaw's alleged fraud upon the public and the C.P.S.C."
This court finds the decision of Special Term equivocal on the issue of the right to assert the statutory action provided in Sec. 2072, Title 15 U.S.C.
Whatever doubt attends the trial court's decision this court finds no basis authorizing the assertion of the statutory action in the decision of the Third Department. There Justice Yesawich pointedly limited the Appellate Court's affirmance as follows:
"To the extent Special Term's Order of December 7, 1983 recognizes that a common law action for fraud has been set forth, it is affirmed." See 104 A.D.2d 84 at 87-88 ."
Clearly this delineating statement cannot be viewed as an affirmiance of a Special Term holding of a right to bring the statutory action under Sec. 2072 of Title 15 U.S.C. if in fact that was the holding of the Special Term. Equally clear the appellate determination was not a definitive rejection of a right to assert a statutory cause of action under that section of the act. In sum, the issue at bar was adroitly finessed by the appellate determination and leaves the issue open and undetermined in this state.
As extensive a research as is possible and available to the court has disclosed no decision in New York State on the issue other than those of Special Term and Third Department in Young v. Robertshaw Controls Co. which have been reviewed herein. (See respectively 123 Misc.2d 580, 474 N.Y.S.2d 886 and 104 A.D.2d 84, 481 N.Y.S.2d 891).
Further research in other jurisdictions has proved more fruitful. In an extensive and far searching opinion the Supreme Court of Minnesota as recently as September, 1985 definitively held that Sec. 2072 of Title 15 U.S.C. creates a private cause of action for certain violations of "a consumer product safety rule ... or any other rule ... issued by the Commission." Swenson v. Emerson Electric Co., et al., Minn., 374 N.W.2d 690, 699. The court went further and held that a violation of...
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Kent Village Associates Joint Venture v. Smith
...would have to be explicit." (Citations omitted.) The New York courts have reached a similar conclusion. See Howard v. Poseidon Pools, Inc., 133 Misc.2d 43, 506 N.Y.S.2d 519 (1986), aff'd in part, rev'd in part on other grounds, 134 A.D.2d 926, 522 N.Y.S.2d 388 (1987). We are unaware of any ......
- Howard v. Poseidon Pools, Inc., N-R