Oliver v. Tanning Bed, Inc.

• Decision Date: 11 April 2008
• Docket Number: 502221.
• Citation: 2008 NY Slip Op 03263,857 N.Y.S.2d 242,50 A.D.3d 1259
• Parties: SANDRA OLIVER, Appellant-Respondent, v. TANNING BED, INC., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 1259

857 N.Y.S.2d 242

2008 NY Slip Op 03263

SANDRA OLIVER, Appellant-Respondent, v. TANNING BED, INC., et al., Respondents-Appellants.

502221.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 11, 2008.

(1) Cross appeals from an order of the Supreme Court (Relihan, Jr., J.), entered November 14, 2006 in Broome County, which partially granted defendants' motion for summary judgment, and (2) appeal from an order of said court (Rumsey, J.), entered June 22, 2007 in Broome County, which denied plaintiff's motion to vacate or resettle the prior order.

Mercure, J.P.

Plaintiff alleges that after 18 minutes of tanning at defendants' salon, she suffered second degree burns over 65% of her body and was hospitalized twice. Plaintiff asserts that she developed a back injury as a result of inactivity during the hospitalizations, requiring her to lose weight and necessitating gastric bypass surgery. Thereafter, plaintiff commenced this action against defendants, alleging negligence, violation of the Federal Food, Drug, and Cosmetic Act (see 21 USC § 301 et seq.) and misrepresentation. Following joinder of issue, defendants moved for, as relevant here, summary judgment dismissing the complaint.

In August 2006, Supreme Court (Relihan, Jr., J.) issued an oral decision partially granting defendants' motion and directing them to present a proposed order. Evidently, no stenographer was present and the parties dispute which portions of the complaint were dismissed, with plaintiff asserting that the court did not dismiss her claims related to her dependency on pain medication, back injury and cancellation of back surgery. When plaintiff raised these objections before Supreme Court in a timely fashion after receiving a notice of settlement and a copy of a proposed order from defendants, the court informed her that defendants had not yet presented the order to it. In fact, however, the court had previously signed the proposed order on November 2, 2006.^*

Plaintiff, who remained unaware that the order was signed, asserts that defendants did not respond to her requests for information regarding the status of the order until serving her with a copy of the order and notice of its entry on January 2, 2007, just after the assigned Justice retired. Plaintiff then moved to vacate the order on the ground that it was untimely submitted to the court or for resettlement to correct the alleged inconsistency with the court's oral decision. Supreme Court (Rumsey, J.) denied the motion to resettle on the ground that the court could not determine whether the order deviated from the oral decision in the absence of any record of that decision. Plaintiff and defendants now cross-appeal from the November 2006 order and plaintiff appeals from the order denying her motion to vacate or resettle.

Upon their cross appeal, defendants argue that the complaint should be dismissed in its entirety because plaintiff's conduct in consciously choosing to tan for a time period longer than recommended was the sole proximate cause of the incident. In the alternative, defendants argue that they owed no duty to warn plaintiff because the risk of injury from tanning was open and obvious. We disagree.

Defendants concede that their tanning salon used stronger bulbs than other salons used, and that it was defendants' policy to so warn all customers. Indeed, an employee of defendants indicated in deposition testimony that if a customer insisted on exceeding the recommended time limits, defendants required the customer to sign a waiver indicating that he or she was aware that the lamps were "much stronger than the lamps used at other tanning centers" and of "the definite risk of serious sunburn." Although another of defendants' employees testified that plaintiff was warned that she should tan for no more than 10 minutes and that she signed consent forms, such forms are not contained in the record and plaintiff...