Tardella v. RJR Nabisco, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MERCURE
• Citation: Tardella v. RJR Nabisco, Inc., 576 N.Y.S.2d 965, 178 A.D.2d 737 (N.Y. App. Div. 1991)
• Decision Date: 05 December 1991
• Parties: , Prod.Liab.Rep. (CCH) P 13,025 Francis J. TARDELLA, Individually and as Parent and Natural Guardian of Hollie Tardella, an Infant, Appellant, v. RJR NABISCO, INC., et al., Respondents.

Page 965

576 N.Y.S.2d 965

178 A.D.2d 737, Prod.Liab.Rep. (CCH) P 13,025

Francis J. TARDELLA, Individually and as Parent and Natural Guardian of Hollie Tardella, an Infant, Appellant, v. RJR NABISCO, INC., et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 5, 1991.

Stockfield & Fixler (Kent L. Benziger, of counsel), Carmel, for appellant.

Sichol & Hicks, P.C. (Danielle M. Goodman of counsel), Suffern, for Buckeye Retailers, Inc., respondent.

Granik, Silverman, Sandberg, Campbell, Nowicki, Resnick (David W. Silverman, of counsel), New City, for RJR Nabisco, Inc., respondent.

Louis D. Broccoli (Laura Freeman, of counsel), Hartsdale, for Mittsch Co., Inc., respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, MERCURE and CREW, JJ.

MERCURE, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Dickinson, J.), entered July 23, 1990 in Putnam County, which, inter alia, granted defendants' cross motions for summary judgment dismissing the complaint and to dismiss the complaint for lack of jurisdiction.

Plaintiff commenced this action in August 1986 to recover damages resulting from his infant daughter's January 1983 ingestion of a 7/8-inch "beading" pin which was embedded in a Baby Ruth candy bar which she purchased at a Rite-Stop convenience store in the Town of Carmel, Putnam County. In May 1990, plaintiff moved, inter alia, for permission to file a note of issue and certificate of readiness subsequent to the November 1, 1989 deadline established by Supreme Court, and defendant RJR Nabisco, Inc., the manufacturer of the candy bar, and defendant Mittsch Company, Inc., the wholesale distributor, each cross-moved for summary judgment dismissing the complaint. Defendant Buckeye Retailers, Inc., the retail seller of the candy bar, cross-moved to dismiss the complaint for lack of personal jurisdiction. Supreme Court granted the cross motions of all defendants and dismissed the complaint. Plaintiff appeals.

There should be an affirmance. Addressing first the grant of summary judgment in favor of Nabisco and Mittsch, we note that whether the action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer's burden to show that a defect in the product was a substantial factor in causing the injury and, of greatest significance here, that the defect complained of existed at the time the product left the manufacturer or entity in the line of distribution being sued (see, Rosado v. Proctor & Schwartz, 66 N.Y.2d 21, 25, 494 N.Y.S.2d 851, 484 N.E.2d 1354; Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 412, 488 N.Y.S.2d 132, 477 N.E.2d 434; 1 Weinberger, New York Products Liability § 17:05). On the cross motions by Nabisco and Mittsch, Supreme Court had before it an affidavit and deposition testimony of Muhammed Mian, supervisor of quality control at the plant where the candy bar was manufactured, an affidavit of John McAnelly, a former Nabisco director of corporate quality control, and deposition testimony of Harry Lawrence, director of quality assurance for Nabisco's food services division, and Alfred Lenz, comptroller of Mittsch's parent corporation. We agree with Supreme Court that this evidence satisfied the movants' burden of establishing prima facie that the pin was not in the candy bar when it left Nabisco's manufacturing and distribution facilities and Mittsch's warehouse.

Specifically, it was shown that the type of pin which injured plaintiff's infant, designed for attaching sequins to polystyrene decorations, was never used in Nabisco's facility and that all Nabisco manufacturing personnel wore smocks, had their hair covered and were prohibited from wearing jewelry other than wedding rings. Further, the raw materials used in the manufacturing process were carefully tested and inspected for foreign matter. The powdered and liquid ingredients were filtered or screened such that a pin could not pass through with the product. The peanuts, by far the most likely source of solid contaminants, underwent extensive quality control procedures and tests. During the manufacturing process, the peanuts passed over a number of separate magnets and were subjected to visual and electronic inspection, and both the peanuts and the finished product passed through an ICORE metal detector which would have detected and automatically rejected a candy bar containing a metal object 1/10 the size of the subject pin. Contrary to plaintiff's assertion, there is nothing in the evidence presented on the motion which indicates that these quality assurance devices were prone to failure or functioned other than...