Oza v. Sinatra
| Decision Date | 28 October 1991 |
| Citation | 575 N.Y.S.2d 540,176 A.D.2d 926 |
| Parties | Abdul Sattar OZA, etc., Plaintiff-Respondent, v. Anthony SINATRA, et al., Defendants-Respondents, Bruce Croly, et al., Appellants, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
William J. Cariello, Garden City (Susan A. Flynn, of counsel), for appellant Bruce Croly.
Congdon, Flaherty, O'Callaghan, Reid, Donlon & Travis, P.C., Garden City (Christine Gasser and Gerard Elicks, of counsel), for appellant James DeLuna.
Segal and Meltzer, New York City (Howard W. Segal and Bradley D. Wank, of counsel), for appellant Arvin Industries, Inc.
Donner, Hariton & Berka, P.C., Bay Shore (Robert J. Zysk and Ira Hariton of counsel), for plaintiff-respondent.
Before THOMPSON, J.P., and KUNZEMAN, LAWRENCE and MILLER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for wrongful death, the defendants Bruce Croly and James DeLuna separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated August 25, 1989, as, inter alia, denied their respective motions for summary judgment dismissing the complaint insofar as it is asserted against each of them, and the defendant Arvin Industries, Inc., appeals from so much of the same order as denied those branches of its motion which were for summary judgment dismissing the plaintiff's fourth and fifth causes of action insofar as asserted against it.
ORDERED that the order is modified, on the law, by deleting the provisions thereof which denied those branches of the motion of the defendant Arvin Industries, Inc., which were to dismiss the plaintiff's fourth and fifth causes of action, and by substituting therefor a provision granting the motion of Arvin Industries, Inc., in its entirety, and dismissing the complaint insofar as it is asserted against the defendant Arvin Industries, Inc., and the action against the remaining defendants is severed; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In December 1984 the decedent Muhammed Oza and his brother purchased the existing lease of a gas station located at Seldon, New York, together with certain fixtures and equipment in the leased premises, including two electric space heaters which had been manufactured by the defendant Arvin Industries, Inc. (hereinafter Arvin). Thereafter, the two brothers operated the station 24 hours a day, seven days a week, each working 12-hour shifts. As the two space heaters which, the plaintiff concedes, were intended to be used as "a household device * * * as a room heater", were the sole source of heat for the office on the premises, they were also operated continuously, 24 hours a day.
On February 5, 1985, a cold and snowy night, around midnight, the defendants Sinatra, Croly and DeLuna drove into the gas station and asked for $1.50 worth of gasoline. The deceased, who was on duty, refused to pump that minimal amount. Croly then placed the money on top of a gas pump and undertook to pump the gasoline himself, and a fight ensued. In the course of the melee, both the decedent and the defendant Sinatra, along with their clothing, were saturated with gasoline. After the fighting subsided, DeLuna and Croly helped Sinatra into their car and drove him to DeLuna's home, where he removed his combustible clothing.
The decedent, meanwhile, ran into the gas station office and telephoned 911 in a confused and desperate state. The 911 transcript discloses that he reported he had been "beat up", could not hear or see, and that he needed help. Some minutes later, the first police officers arrived upon the scene and found the gas station office filled with smoke. The decedent was lying on the floor, engulfed in flames. Wrapped around his right leg was an electrical wire with uncovered splices, used to power a television set that had been in operation. The two electrical space heaters were operating nearby on a desk.
The decedent was subsequently pronounced dead. The autopsy report confirmed the causes of death to be thermal injuries and smoke inhalation. Both the autopsy report and the police report suggested that the decedent's gasoline-soaked clothes ignited when they came close to one of the space heaters.
This wrongful death action was commenced against Arvin, and against Sinatra, Croly and DeLuna, among others. With regard to Croly and DeLuna (Sinatra did not appeal), we agree with the Supreme Court that the evidence submitted by the plaintiff was sufficient to raise triable issues of fact as to whether they bear some responsibility for the decedent's death.
We reach a different conclusion, however, with respect to the defendant Arvin. The Supreme Court dismissed the causes of action against Arvin alleging breach of warranty. The remaining causes of action are based solely on an alleged breach of Arvin's duty to warn.
It is undisputed that there was emblazoned on the space heaters a warning in white letters on a black background:
Clearly, this warning was adequate to alert a consumer to any risks or hazards inherent in the product that are related to its intended and reasonably foreseeable use as a room space heater (see, Prosser and Keeton, Torts, § 96, at 685 [5th ed.].
Moreover, it is well settled that "there is no necessity to warn a customer already aware--through common language or learning--of a specific hazard" (Landrine v. Mego Corp., 95...
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