Mead v. Warner Pruyn Division, Finch Pruyn Sales, Inc.

• Citation: 394 N.Y.S.2d 483,57 A.D.2d 340
• Court: New York Supreme Court Appellate Division
• Decision Date: 19 May 1977
• Parties: C. Alden MEAD, as Administrator of the Estate of Claude D. Mead, Deceased, et al., Respondents, v. WARNER PRUYN DIVISION, FINCH PRUYN SALES, INC., Appellant, and Frigidaire Sales Corporation et al., Defendants.

Page 483

394 N.Y.S.2d 483

57 A.D.2d 340

C. Alden MEAD, as Administrator of the Estate of Claude D.

Mead, Deceased, et al., Respondents, v. WARNER PRUYN DIVISION, FINCH PRUYN SALES, INC., Appellant, and Frigidaire Sales Corporation et al., Defendants.

Supreme Court, Appellate Division, Third Department.

May 19, 1977.

Carter, Conboy, Bardwell, Case & Blackmore, Albany (William P. Soronen, Jr., Albany, of counsel), for appellant.

LaPann, Reardon, Fitzgerald & Firth, Glens Falls (Peter D. Fitzgerald, Glens Falls, of counsel), for respondents.

Bond, Schoeneck & King, Albany (Michael P. Shanley, Jr., Albany, of counsel), for Onondaga Supply Company, Inc., defendant.

Simpson, Thacher & Bartlett, New York City (George M. Newcombe, New York City, of counsel), for Frigidaire Sales Corp., defendant.

Before GREENBLOTT, J. P., and SWEENEY, MAIN, LARKIN and HERLIHY, JJ.

HERLIHY, Justice.

Plaintiffs seek damages for the wrongful deaths of their decedents. On August 20, 1971 the appellant Warner Pruyn Division, Finch Pruyn Sales, Inc. sold a refrigerator to a Mr. & Mrs. Ross. On October 15, 1973 Mr. and Mrs. Ross sold their residence, including the refrigerator, to Claude P. and JoAnn Ross Mead. On August 29, 1975 a fire at the Mead residence caused the deaths of the plaintiffs' intestates. The plaintiffs have alleged that defects in the refrigerator caused the fire.

The fundamental issue on this appeal is 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. To put it more succinctly is a retailer an indefinite guarantor of a product as to defects which might render it harmful to an innocent user?

The order should be affirmed as stated in the opinion of Special Term, inter alia : "The imposition of this responsibility will bring from the retailer further pressure on the manufacturer for 'safety in design and production', all to the protection of the public". There is the additional consideration that there will be more possible defendants and thus, perhaps, greater opportunity to the consumer to commence an action against the responsible party.

Research discloses that there is respectable authority, including the Restatement of Torts, Second, section 402A, which favors imposing liability on a retailer. The justification for the imposition of such liability is said to be 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 II, Torts, § 402A, comment c).

A leading case in favor of imposing liability on the retailer is Vandermark v. Ford Motor Company, (61 Cal.2d 256, 391 P.2d 168, 37 Cal.Rptr. 896).

The reasons for imposing such liability were stated therein as follows:

Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products (citation omitted). In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end; the retailer's strict liability thus serves as an added incentive to safety. Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship (id. 37 Cal.Rptr. 899, 391 P.2d at 171-172).

The court then stated, relying upon Greenberg v. Lorenz, (9 N.Y.2d 195, 200, 213 N.Y.S.2d 39, 42, 173 N.E.2d 773, 774), that a retailer engaged in the business of distributing goods to the public is strictly liable in tort for personal injuries caused by defects in goods sold by it.

However, it is clear that the theory of strict products liability as imposed by the court in Vandermark would be different from the New York theory because the court in Vandermark would not let a retailer limit his liability to a buyer by contract. In the case of Velez v. Craine & Clark Lbr. Corp., 33 N.Y.2d 117, 125, 350 N.Y.S.2d 617, 623, 305 N.E.2d 750, 754 it was noted that parties to a sale could limit their liability each to the other by contract provisions. However, the court in Velez expressly held that "in the absence of special circumstances not present here, buyer and seller cannot contract to limit the seller's exposure under strict products liability to an innocent user or bystander." (Id.). While it is to some extent tempting to contend that since Mr. and Mrs. Mead purchased the machine, they are not "innocent" users or "bystanders", such a distinction herein would be unrealistic.

Accordingly, the reasons advanced in the Restatement of Torts and which are substantially the arguments of the court in Vandermark v. Ford Motor Company (supra) would require a finding that the plaintiffs' intestates are in the group entitled to assert strict products liability if the court adopts the theory that a retailer can be so liable.

The doctrine has been adopted in other jurisdictions (Casrell v. Altec Industries, Inc., Ala., 335 So.2d 128; Higel v. General Motors Corp., Colo., 544 P.2d 983; Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893; Peterson v. Lou Bachrodt Chevrolet Co., 61 Ill.2d 17, 329 N.E.2d 785; Moss v. Polyco, Inc., 522 P.2d 622 (Okl.); Kleve v. General Motors Corp., 210 N.W.2d 568 (Iowa); Newmark v. Gimbel's, Inc., 54 N.J. 585, 258 A.2d 697; Brandenburger v. Toyota Motor Sales, USA, Inc., 162 Mont. 506, 513 P.2d 268; Markle v. Mulholland's, Inc., 265 Or. 259, 509 P.2d 529; Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55; ...