Lugo by Lopez v. LJN Toys, Ltd.

• Decision Date: 13 April 1989
• Parties: , Prod.Liab.Rep. (CCH) P 12,107 Yessenia LUGO, an infant by her mother and natural guardian, Mildred LOPEZ and Mildred Lopez, individually, Plaintiffs-Respondents, v. LJN TOYS, LTD., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 922

539 N.Y.S.2d 922

146 A.D.2d 168, Prod.Liab.Rep. (CCH) P 12,107

Yessenia LUGO, an infant by her mother and natural guardian Mildred LOPEZ and Mildred Lopez, individually Plaintiffs-Respondents, v. LJN TOYS, LTD., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 13, 1989.

Robert C. Agee, Bronxville, of counsel (Fitzgerald & Fitzgerald, Yonkers, attorneys) for plaintiffs-respondents.

Joseph M. Buderwitz, of counsel (Joseph J. Buderwitz, Jr. with him on the brief, Anthony R. Caputo, P.C., Staten Island, attorney) for defendant-appellant.

Before KUPFERMAN, J.P., and SULLIVAN, CARRO, ASCH and KASSAL, JJ.

KASSAL, Justice.

Under the venerable and oft-reiterated standard by which a motion for summary judgment must be determined, the court's function is one of issue finding rather than issue determination, and if there is any doubt as to the existence of factual issues, this "drastic remedy" should not be granted. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387. Bearing these principles in mind, we have examined the record before us and conclude that the circumstances presented do raise material issues of fact, and that this matter must accordingly await resolution at trial.

On March 21, 1986, the infant plaintiff, six-year-old Yessenia Lugo, sustained serious and permanent eye injuries when a detachable part of a toy, flung in her direction by an eight-year-old neighbor, Brian Franks, struck her left eye. The toy, which was manufactured and distributed by defendant, LJN Toys, Ltd. ("LJN"), was "Voltron--Defender of the Universe", a robot-like plastic figure marketed for children four years of age and older. Its packaging contained neither warnings nor directions for recommended use of the figure or its various detachable parts.

Children who watched television, however, were likely to be familiar with the Voltron animated cartoon series, whose popularity inspired the creation of the toy. These cartoons, which were a favorite television program of Brian's, were also available in video cassettes. In them, Voltron, the powerful Defender of the Universe, fought enemies with his sword and "spinning laser blade", a star-shaped weapon with eight sharp points. The cartoons depicted Voltron calling upon the spinning blade, which would appear in his hand, and then spinning it toward his opponent, who would be sliced or cut upon contact. In one instance, the spinning blade trimmed the ears off of Voltron's enemy. It was this weapon, designed to detach from the hand of the Voltron toy, that Brian threw, causing Yessenia's injuries.

Upon this record, LJN asserts that it is entitled to summary judgment dismissing the complaint as a matter of law. We are in agreement with the trial court that this motion must be denied.

The Court of Appeals has consistently instructed that, "[n]egligence cases by their very nature do not usually lend themselves to summary judgment", Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 386 N.E.2d 1324, for "even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances [, an issue which] can rarely be decided as a matter of law". Andre v Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853. Questions of design defect, such as those raised here, have specifically been held to be inappropriate for summary judgment relief. Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769. Likewise, where the claim of liability is based upon a manufacturer's failure to warn, a theory also presented by plaintiffs herein, summary judgment will generally not lie. Cooley v. Carter-Wallace, 102 A.D.2d 642, 478 N.Y.S.2d 375; see Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378, 461 N.E.2d 864.

Of course, while the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642, the opponent of such a motion must establish the existence of a genuine factual controversy. S.J. Capelin Associates v. Globe Manufacturing Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776. In the case at bar, plaintiffs have met this burden through the submission of affidavits from experts, one of whom is a member of the Toy Safety Task Group of the American Society of Testing and Materials. Plaintiffs' experts assert that the television shows and video cassettes depicting Voltron's use of the spinning blade as an offensive weapon could influence a child, consciously or unconsciously, to emulate such behavior. These experts have also expressed the view that the design of the toy, which permitted the spinning blade to be readily detached from Voltron's hand--indeed, such detachability was intended--posed unreasonable risks and dangers to the children for which it was marketed.

Despite this evidence, as well as the concession by defendant's own witness that the spinning blade was a "throwing star" which is "thrown and sticks in things", defendant claims, and has persuaded our dissenting colleagues, that plaintiffs have failed to raise questions of fact sufficient to overcome a motion for summary judgment. Because defendant's arguments reach beyond issue finding and engage in the prohibited practice of "issue determination", we reject them for the purposes of accelerated judgment, and relegate this controversy to the proper forum, the jury. It is defendant's contention, for example, that the Voltron toy's compliance with certain federal toy safety regulations absolves it, as a matter of law, from any liability. It is well established in this State, however, that while compliance with a statute may constitute some evidence of due care, it does not preclude a finding of negligence. Sherman v. M. Lowenstein & Sons, Inc., 28 A.D.2d 922, 282 N.Y.S.2d 142; Stone v. Sterling Drug, Inc., 111 A.D.2d 1017, 490 N.Y.S.2d 468.

Defendant further invokes the doctrine of "obvious risk" to negate any liability on its part as a matter of law, citing various out-of-state authorities to support this claim. Under New York law, however, the extent to which a risk may be deemed to have been obvious is simply another factor in determining the degree of reasonable care exercised by the parties and, as such, must be reserved for the trier of the facts. See Micallef v. Miehle Co., 39 N.Y.2d 376, 387, 384 N.Y.S.2d 115, 348 N.E.2d 571.

In short, this case is not one in which summary judgment, a drastic remedy that is the procedural equivalent of a trial, S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., supra, 34 N.Y.2d at 341, 357 N.Y.S.2d 478, 313 N.E.2d 776, should be granted. As this Court recently observed in Rotz v. City of New York, 143 A.D.2d 301, 304, 532 N.Y.S.2d 245 "Issues of negligence, foreseeability and proximate cause involve the kinds of judgmental variables which have traditionally, and soundly, been left to the finders of fact to resolve even where the facts are essentially undisputed [citations omitted]".

Although we have concluded that defendant is not entitled to summary judgment, our examination of this record leads us to agree with defendant that plaintiffs' claim for punitive damages should have been stricken. The recovery of such damages "depends upon the defendant acting with evil or wrongful motive or with a willful and intentional misdoing, or with a reckless indifference equivalent thereto." Le Mistral v. CBS, 61 A.D.2d 491, 495, 402N.Y.S.2d 815,appeal dismissed, 46 N.Y.2d 940. This standard is not met here.

For the foregoing reasons, the order, Supreme Court, Bronx County (Jack Turret, J.), entered on or about December 24, 1987, should be modified, on the law, to the extent of striking the third cause of action in the complaint, and otherwise affirmed, without costs.

Order, Supreme Court, Bronx County (Jack Turret, J.), entered on or about December 24, 1987, modified, on the law, to the extent of striking the third cause of action in the complaint and otherwise affirmed, without costs and without disbursements. The motion by appellant to strike the improperly submitted appendix is granted.

All concur except SULLIVAN and CARRO, JJ., who dissent in an Opinion by SULLIVAN, J.

SULLIVAN, Justice (dissenting).

Defendant LJN Toys, Ltd., a toy manufacturer, appeals from the denial of its motion for a summary judgment dismissal of the complaint in this products liability action seeking to hold it liable for the act of an eight and one-half year-old boy who threw a part of its toy, which struck the then six-year-old infant plaintiff in the eye. Since plaintiffs, the infant and her mother, who sues in her derivative right as well as representative capacity, have failed to demonstrate that the toy was defective or unreasonably dangerous for its intended use, we would reverse and dismiss the complaint.

The complaint alleges that Yessenia Lugo was severely injured after being struck in the eye by the plastic shield of a Voltron doll manufactured by defendant. It is alleged that the plastic was designed and manufactured negligently and in violation of federal "sharp point" requirements, and that, despite defendant's representation that the toy was safe for children four years of age and over, inadequate warnings left infants, and presumably parents, unadvised as to the extreme danger from the claimed foreseeable use of this unreasonably dangerous toy.

These general allegations are amplified by the bill of particulars which states, in part, that the doll was designed and manufactured with a laser star pointed shield with sharp edges, and that it was foreseeable that the shield would be used in the manner depicted in the video program known as Voltron, the Defender of the Universe, in which the shield is depicted as being a spinning laser that flies from Voltron to his...