Kirby v. Rouselle Corp.

• Decision Date: 26 February 1981
• Citation: 108 Misc.2d 291,437 N.Y.S.2d 512
• Parties: Cynthia KIRBY and David I. Kirby, Plaintiffs, v. ROUSELLE CORPORATION and Paul Abell, d/b/a Abell Machine Tool Company, Defendants.
• Court: New York Supreme Court

Page 512

437 N.Y.S.2d 512

108 Misc.2d 291

Cynthia KIRBY and David I. Kirby, Plaintiffs, v. ROUSELLE CORPORATION and Paul Abell, d/b/a Abell Machine Tool Company, Defendants.

Supreme Court, Monroe County.

Feb. 26, 1981.

David A. Johns, Faraci, Guadagnino, Lange & Johns, Rochester, for plaintiffs.

George A. Schell, Johnson, Reif & Mullan, P. C., Rochester, for defendant Abell.

DECISION

ROBERT H. WAGNER, Justice.

The defendant, Paul Abell, d/b/a Abell Machine Tool Company (Abell) moves for summary judgment dismissing the plaintiffs' complaint pursuant to CPLR 3212.

On August 25, 1977 while operating a Rouselle Model 2, 15 ton, Inclinable Punch Press as an employee of Brainerd Manufacturing Company, Inc. (Brainerd), plaintiff, Cynthia Kirby, sustained personal injuries when her hand was caught between the press dies.

The following facts are undisputed. Abell was a manufacturers representative or distributor of heavy machinery, including punch presses manufactured by the defendant, Rouselle Corporation (Rouselle). Sometime before September 16, 1974, Brainerd contacted Rouselle concerning the acquisition of a punch press manufactured by Rouselle. Rouselle, in turn, sent a letter dated September 16, 1974 to Brainerd, advising them to contact Abell. Shortly thereafter, Abell contacted Brainerd and in due course Abell received a purchase order from Brainerd for the punch press in question. The purchase order specified that the punch press was to be shipped direct to Brainerd. The price terms were F.O.B. Chicago, Illinois. On November 8, 1974 Abell executed and forwarded to Rouselle a purchase order for the specific Rouselle punch press which was the subject of the Brainerd purchase order and directed shipment direct from Rouselle to Brainerd. Subsequently, a punch press was shipped by Rouselle on February 26, 1975, directly to Brainerd. Thereafter, Abell received a copy of the bill of lading from the common carrier. Abell also received an invoice from Rouselle dated February 27, 1975 stating that the punch press had, in fact, been shipped on February 26, 1975 via a trucking company. On March 3, 1975, Abell issued its invoice to Brainerd for the punch press in question. By check dated March 13, 1975, received by Abell on March 17, 1975, Brainerd paid the total invoice.

Brainerd, through Mr. Lippman, its president, was familiar with the Rouselle punch press prior to the time that Abell contacted Brainerd. Following delivery of the punch press from Rouselle, Brainerd installed the machine without any involvement on the part of Abell. At no time subsequent to the delivery of the machine to Brainerd, did Abell perform any service or maintenance work on the machine.

Plaintiff, Cynthia Kirby, seeks recovery for her personal injuries against the defendants, Rouselle and Abell, on the theories of negligence, strict products liability in tort and breach of express and implied warranties. Plaintiff, David I. Kirby, brings a derivative action for loss of services and expenses.

The acts which plaintiffs allege constitute the negligence of Abell are (1) failure to properly inspect the device in question to determine its hazardous propensity for accidental tripping, (2) failure to properly inspect the device to determine its hazardous lack of safety controls, guards, barriers and devices, (3) failure to act upon knowledge or notice of the defective and hazardous condition of the press in question, (4) failure to warn operators of the danger of inadequate guards, controls, barriers and safety devices, (5) failure to warn operators of the hazard of accidental tripping, and (6) in marketing and distributing an inherently dangerous instrumentality without regard for the safety of operators.

The causes of action for strict liability allege that the press in question was defective when it left the control of each of the defendants and was not reasonably safe in that it subjected Cynthia Kirby and others who might reasonably be expected to use it to unreasonable risk of loss of life and limb.

It is alleged that Abell breached its implied and express warranties that the press was reasonably safe and fit for the purposes intended and was of merchantable quality. Abell argues that the warranty causes of action are time-barred and that the negligence and strict products liability claims are insufficient as a matter of law.

Plaintiffs concede that inasmuch as the punch press was sold and delivered prior to March 13, 1975 and the action was not commenced until October 23, 1979, the warranty causes of action are barred by the four-year Statute of Limitations (Uniform Commercial Code, § 2-725; see Reis v. Pfizer, Inc., 61 A.D.2d 777, 402 N.Y.S.2d 401, affd. 48 N.Y.2d 664, 421 N.Y.S.2d 879, 397 N.E.2d 390; McKee v. Johns Manville Corp., 94 Misc.2d 327, 404 N.Y.S.2d 814).

Plaintiffs do not submit any affidavit in opposition to the motion for summary judgment on the causes of action in strict liability and negligence. Rather, plaintiffs submit a legal memorandum in which they argue that the strict liability causes of action are sufficient as a matter of law. Their memorandum does not specifically address the causes of action sounding in negligence.

The fundamental issue presented in regard to the strict liability causes of action is whether a distributor, who, pursuant to a buyer's instructions, directs the manufacturer to ship a specifically designated model punch press directly to the buyer, can be found liable in strict products liability if the punch press is defective when the manufacturer, in fact, ships the press directly to the buyer and the distributor never inspected, controlled, installed or serviced the punch press. The answer is in the affirmative.

In Mead v. Warner Pruyn Div., Finch Pruyn Sales, 57 A.D.2d 340, 394 N.Y.S.2d 483, the Appellate Division, Third Department, was faced with the issue of "whether or not a retailer of goods which he does not manufacture and over which he has no control as to hidden or latent defects can be subjected to the remedy of strict products liability simply as a retailer of such goods and as to persons not a party to the initial sale by the retailer" (pp. 340-341, 394 N.Y.S.2d 483). Relying heavily upon the Restatement, Torts 2d (§ 402A) and the California case of Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, the court decided that liability could be found. The justification for imposing liability is that:

" '(T)he seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products' (Restatement, Torts 2d, § 402A, Comment C)." (Mead v. Warner Pruyn Div., Finch Pruyn Sales, supra, 57 A.D.2d p. 341, 394 N.Y.S.2d 483.)

The court also noted at page 344, 394 N.Y.S.2d 483 that:

"(T)he retailer may seek contribution from the manufacturer as a joint tort-feasor (see CPLR 1401; Dole v. Dow Chem. Co., 30 N.Y.2d 143, (331 N.Y.S.2d 382, 282 N.E.2d 288)) or provide for contractual indemnity (see Haman v. Humble Oil & Refining Co., 34 N.Y.2d 557 (354 N.Y.S.2d 940, 310 N.E.2d 538); 2 A Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 1401.09) or finally, seek indemnity from the manufacturer based upon strict products liability (see Infante v. Montgomery Ward & Co., 49 A.D.2d 72, 75, 371 N.Y.S.2d 500)."

As stated in Nickel v. Hyster Co., 97 Misc.2d 770, 771, 412 N.Y.S.2d 273:

"Although section 402 A uses the specific term 'seller', comment f makes it apparent that the rule applies to any manufacturer, wholesale or retail dealer, or distributor who is engaged in the business of selling products for use or consumption. Under the strict products liability doctrine as it exists in New York (see Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622), defendants can be manufacturers, distributors, retailers, processors and makers of component parts who sell the product alleged to have caused injury (1 PJI 2:141), in essence, those responsible for placing the defective product in the marketplace (Queensbury Union Free School Dist. v. Walter Corp., 91 Misc.2d 804, 398 N.Y.S.2d 832)." ¹

Abell relies on Wellman v. Supreme Farmstead Equipment (100 Misc.2d 956, 420 N.Y.S.2d 353), a case which is factually analogous to the situation at bar. In that case the court, though recognizing that a rationale exists for holding that strict liability for a defective product should be imposed upon anyone who places a defective product...