Rivera v. Berkeley Super Wash, Inc.

• Decision Date: 15 April 1974
• Citation: 354 N.Y.S.2d 654,44 A.D.2d 316
• Parties: Alberto RIVERA, Sr., et al., Respondents, v. BERKELEY SUPER WASH, INC., Defendant and Third-Party Plaintiff; et al., Defendant; Bock Laundry Machine Company, Defendant and Third-Party Defendant-Appellant; et al., Third-Party Defendants.
• Court: New York Supreme Court — Appellate Division

Page 654

354 N.Y.S.2d 654

44 A.D.2d 316

Alberto RIVERA, Sr., et al., Respondents, v. BERKELEY SUPER WASH, INC., Defendant and Third-Party

Plaintiff; et al., Defendant; Bock Laundry Machine

Company, Defendant and Third-Party

Defendant-Appellant; et al.,

Third-Party Defendants.

Supreme Court, Appellate Division, Second Department.

April 15, 1974.

Huber, Kirk & O'Connell, Brooklyn (Alexander, Ash, Schwartz & Cohen, New York City (trial counsel); Irwin H. Haut and Sidney A. Schwartz, New York City, of counsel), for appellant

Joseph Friedberg, New York City (Martin Levine, Woodmere, of counsel), for respondents.

Before SHAPIRO, Acting P.J., and COHALAN, CHRIST, BENJAMIN and MUNDER, JJ.

SHAPIRO, Acting Presiding Justice.

The question presented is whether the contract Statute of Limitations (which commences running at the time of sale) or the tort Statute of Limitations (which commences at the time of injury) is to be applied in this case. The determination is crucial to the infant plaintiff since, if the contract Statute of Limitations is applied, he would be deprived of the possibility of proceeding under the doctrine of strict products liability recently announced in Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 and amplified in Velez v As recently as 1969, by a 4 to 3 vote, the Court of Appeals in Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207 decided that the contract Statute of Limitations applies to a breach-of-warranty cause of action brought by a remote user of an allegedly defective product seeking recovery of damages for personal injuries. By reason of the Codling and Velez decisions, we hold that Mendel is not applicable to strict-products-liability cases and that the three-year limitation period for personal injury claims (CPLR 214, subd. 5) and the normal tort rule that the claim accrues at the time of the injury apply to the plaintiffs' causes of action which seek recovery on the strict-products-liability theory.

Craine & Clark Lbr. Corp., 33 N.Y.2d 117, 350 N.Y.S.2d 617, 305 N.E.2d 750. The new strict-products-liability doctrine permits recovery of damages for personal injuries suffered through the normal and intended use of a defective instrumentality or, as Judge Jones concisely stated it in the first paragraph of his opinion in Codling (p. 335, of 32 N.Y.2d, p. 463 of 345 N.Y.S.2d, p. 624 of 298 N.E.2d), 'we hold that today the manufacturer of a defective product may be held liable to an innocent [44 A.D.2d 318] bystander, without proof of negligence, for damages sustained in consequence of the defect.'

THE FACTS

The infant plaintiff, Alberto Rivera, Jr., celebrated his eighth birthday on October 2, 1967. On that day, he accompanied his aunt while she did her laundry at the defendant Berkeley Super Wash, Inc. (Berkeley) self-service laundromat in Brooklyn. After the laundry was washed, it was placed by the infant's aunt, still wet, in a centrifugal laundry extractor manufactured by the defendant-appellant Bock Laundry Machine Company (Bock), of Toledo, Ohio, and sold and delivered by it sometime in 1959. The function of such a machine is to extract excess moisture from laundry after washing, thereby reducing the necessary drying time. The aunt started the extractor in operation and left to get change while the infant plaintiff remained behind. The lid of the extractor was supposedly incapable of opening during the machine's operating cycle.

On this occasion, however, and due to an alleged defect, the lid popped open while the machine was still in operation with the interior compartment spinning at a high rate of speed. ¹ The infant plaintiff reached in with his right arm in an attempt to remove the laundry, and some of the wash being whipped about caught his arm, causing The plaintiffs--the infant and his parents--commenced this litigation in 1967 (some eight years after the sale of the extractor by Bock), seeking to recover damages for the personal injuries and loss of services resulting from alleged negligence in the design, manufacture and maintenance of the extractor. Subsequently, Berkeley commenced a third-party action against certain additional parties and also asserted a cross claim against Bock.

multiple fractures of the arm and right scapula. The arm subsequently had to be amputated at the elbow.

The plaintiffs' complaint was amended in March, 1973 by the addition of two causes of action on behalf of the infant and his parents, respectively, alleging breaches of the implied warranties of merchantability and fitness for use. Bock moved for summary judgment dismissing the breach-of-warranty causes of action, asserting that they were time barred by virtue of the expiration of the six-year Statute of Limitations (former Civ.Prac.Act, § 48; CPLR 213). The motion was denied, without prejudice to renewal following an examination before trial.

Upon completion of the discovery proceedings, the plaintiffs, in September, 1973, moved for leave to serve a further amended complaint setting forth yet two additional causes of action (as the fifth and sixth) on behalf of the infant and his parents. These additional causes of actions are grounded on Bock's strict liability in tort and are based on the recent decision of the Court of Appeals in Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622, Supra. Bock then (as a cross motion) renewed its motion for summary judgment as to the third and fourth causes of action. It is from the granting of leave to the plaintiffs to serve the further amended complaint and the concomitant denial of Bock's renewed motion that Bock presently appeals.

A DISCUSSION OF THE LAW

The rapid growth and development of the law of products liability has been extensively noted. ² In New York, the scope of a manufacturer's liability in product liability actions for personal injuries and property damage has been gradually expanded since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) dispensed with the requirement of privity in cases based on negligent manufacture. The privity limitation retained vitality, however, in cases in which breach of warranty, either express or implied, was alleged (Turner v. Edison Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622, Supra represents the culmination of the evolution in New York of the doctrine of strict products liability, a doctrine which earlier found acceptance in a number of other jurisdictions. ³ To be sure, the terms used to describe the cause of action which has evolved have caused their share of confusion, but whether we speak in terms of 'enterprise liability', 'strict liability in tort' or 'strict products liability' (the term apparently preferred by our Court of Appeals), the broad principle laid down in Codling is as follows (p. 342 of 32 N.Y.2d, p. 469 of 345 N.Y.S.2d, p. 628 of 298 N.E.2d):

Stor. Battery Co., 248 N.Y. 73, 161 N.E. 423 (1928)). Significant progress toward removing [44 A.D.2d 320] the privity barrier was made in Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773 (1961) (recovery for personal injuries on breach-of-warranty theory permitted for the infant family member not in privity with the retail dealer of a food product); Randy Knitwear v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962) (manufacturer of a chemical used to treat fabrics held liable to a remote purchaser in an action on express warranty); and Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963) (breach of warranty held to be a 'tortious wrong' (p. 436, 240 N.Y.S.2d p. 594, 191 N.E.2d p. 82) and an airplane manufacturer cast in liability for wrongful death of a passenger resulting from a defective airplane component manufactured by an independent supplier).

'Under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used (whether by the person injured or damaged or by a third person) for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) (See, also, Singer v. Walker, 32 N.Y.2d 786, 345 N.Y.S.2d 542, 298 N.E.2d 681 (1973); Velez v. Craine & Clark Lbr. Corp., 33 N.Y.2d 117, 350 N.Y.S.2d 617, 305 N.E.2d 750, Supra.) ⁴ However, irrespective of the particular terminology employed, the clear intent of the recent decisions is to protect a party injured--be he purchaser, user or innocent bystander--by a defective product, subject to the conditions set forth by Judge Jones and quoted above (see, also, Velez, supra p. 122, 350 N.Y.S.2d p. 620, 305 N.E.2d p. 752).

that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.'

Of course, the fact that New York now recognizes a strictproducts-liability cause of action does not mean that breach of warranty under the Uniform Commercial Code no longer exists. The breach-of-warranty causes of action under the code are primarily related to the sales contract (see, e.g., U.C.C., § 2--725) and are separate from a strict-products-liability cause of action, which is wedded to the concept of a tortious wrong. Actions for breach of warranty under the code are subject to all the limitations and requirements imposed by the code. Thus the code, enacted with the purpose, among others, of codifying and expanding the remedies available to parties to sales contracts, does not, and never attempted to, provide an exclusive remedy in the field of products liability. See dissent of Judge Breitel (now Chief Judge) in Mendel v. Pittsburgh Plate Glass...