Trivino v. Jamesway Corp.

• Decision Date: 23 March 1989
• Parties: , 57 USLW 2612, Prod.Liab.Rep. (CCH) P 12,086 Dora TRIVINO, Individually and as Parent and Natural Guardian of Erika Trivino, an Infant, Appellant-Respondent, v. JAMESWAY CORPORATION, Defendant and Third-Party Plaintiff-Respondent-Appellant; Megas Manufacturing, Inc., Third-Party Defendant and Fourth-Party Plaintiff-Respondent; Avtex Fibers, Inc., Fourth-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 123

539 N.Y.S.2d 123

148 A.D.2d 851, 57 USLW 2612,

Prod.Liab.Rep. (CCH) P 12,086

Dora TRIVINO, Individually and as Parent and Natural Guardian of Erika Trivino, an Infant, Appellant-Respondent, v. JAMESWAY CORPORATION, Defendant and Third-Party

Plaintiff-Respondent-Appellant;

Megas Manufacturing, Inc., Third-Party Defendant and

Fourth-Party Plaintiff-Respondent;

Avtex Fibers, Inc., Fourth-Party Defendant-Respondent.

Supreme Court, Appellate Division,

Third Department.

March 23, 1989.

Orseck, Orseck, Greenberg & Waldman (Gerald Orseck, of counsel), Liberty, for appellant-respondent.

Davis & Hoffman (Howard S. Davis, of counsel), New York City, for defendant and third-party plaintiff-respondent-appellant.

Davidoff & Levine (Michael Davidoff, of counsel), Monticello, for third-party defendant and fourth-party plaintiff-respondent.

Appelbaum, Eisenberg, Bauman & Appelbaum (Harold J. Bauman, of counsel), Liberty, for fourth-party defendant-respondent.

Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and MERCURE, JJ.

CASEY, Justice.

Cross appeals from an order of the Supreme Court (Williams, J.), entered December 16, 1987 in Sullivan County, which partially granted defendant's motion for summary judgment dismissing the complaint, dismissed the third-party and fourth-party complaints, and conditionally granted plaintiff's cross motion to serve an amended verified bill of particulars.

Plaintiff purchased cosmetic puffs and children's pajamas from a store owned by defendant in the Town of Liberty, Sullivan County, to make a Halloween costume for her eight-year-old daughter similar to one she had seen in a magazine. Plaintiff glued the cosmetic puffs all over the exterior of the pajamas, creating the appearance of a coat of white fur. While wearing the costume, plaintiff's daughter leaned over the electric stove in her house and the costume ignited, causing severe permanent injuries to the child. Plaintiff, individually and on behalf of her daughter, sued defendant; defendant impleaded the manufacturer of the cosmetic puffs, who in turn impleaded the manufacturer of the rayon fibers used in the puffs.

Defendant moved for summary judgment dismissing the complaint and all cross claims against it. Plaintiff cross-moved for leave to serve a supplemental and amended bill of particulars to delineate plaintiff's claims relating to the injuries caused by the flammability of the pajamas. Supreme Court granted defendant's motion in part by dismissing plaintiff's claims based upon the cosmetic puffs and granted plaintiff's cross motion for leave to serve the supplemental bill of particulars on the condition that plaintiff's counsel pay defendant $1,000 in costs. Plaintiff and defendant have cross-appealed.

Plaintiff's cause of action against defendant based upon the cosmetic puffs is based upon the theory that defendant breached its duty to warn customers of the flammable nature of the cosmetic puffs. Supreme Court held that defendant had no duty to warn in these circumstances since plaintiff's use of the cosmetic puffs was an unforeseeable misuse. While we agree that plaintiff's use of the cosmetic puffs was a misuse in the sense that it was outside the scope of the apparent purpose for which the puffs were manufactured, we cannot agree that plaintiff's misuse was unforeseeable as a matter of law. There is a duty to warn of dangers associated with reasonably foreseeable misuse (McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 226 N.Y.S.2d 407, 181 N.E.2d 430; Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 150 N.Y.S.2d 792, 134 N.E.2d 63). "The question of foreseeability is one for the court when the facts are undisputed and but one inference can be drawn; it is for the jury when varying inferences may be drawn" (Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 132, 428 N.Y.S.2d 535, citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 345, 162 N.E. 99). As we said in Vinogradov v. Clicquot Club Co., 55 A.D.2d 489, 492, 391 N.Y.S.2d 18), "[f]oreseeability depends upon the peculiar facts and circumstance of each case". Based upon the peculiar facts and circumstances of this case, we are of the view that varying inferences may be drawn as to whether plaintiff's use of the cosmetic puffs was reasonably foreseeable and, therefore, the issue is for the jury, not the court (see, Heller v. Encore of Hicksville, 53 N.Y.2d 716, 439 N.Y.S.2d 332, 421 N.E.2d 824, revg. 76 A.D.2d 917, 429 N.Y.S.2d 258; see also, Holtslander v. Whalen & Sons, 70 N.Y.2d 962, 525 N.Y.S.2d 793, 520 N.E.2d 512, modfg. 126 A.D.2d 917, 510 N.Y.S.2d 937 on concurring in part and dissenting in part mem of Levine, J.; Cruz v. New York City Tr. Auth., 136 A.D.2d 196, 526 N.Y.S.2d 827).

Defendant also relies upon the principle that "[t]here is no duty to warn against a condition that can be readily observed by the reasonable use of senses" (Olsen v. State of New York, 30 A.D.2d 759, 291 N.Y.S.2d 833, affd. 25 N.Y.2d 665, 667, 306 N.Y.S.2d 474, 254 N.E.2d 774). Nor is there any "necessity to warn a customer already...