Tucci v. Bossert

• Decision Date: 06 July 1976
• Parties: , 85 A.L.R.3d 721 Anthony TUCCI et al., Appellants, v. Clifford BOSSERT, Jr., et al., Defendants, and Drackett Products Company, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 328

385 N.Y.S.2d 328

53 A.D.2d 291, 85 A.L.R.3d 721

Anthony TUCCI et al., Appellants, v. Clifford BOSSERT, Jr., et al., Defendants, and Drackett Products Company, Respondent.

Supreme Court, Appellate Division, Second Department.

July 6, 1976.

Gilberg & Gilberg, Mount Vernon (David C. Gilberg, Michael H. Gilberg and Robert A. Gilberg, Mount Vernon, of counsel), for appellants.

Warren Freedman, New York City (Cary Stewart Sklaren and Richard L. Stern, New York City, of counsel), for respondent.

Before GULOTTA, P.J., and HOPKINS, LATHAM, MARGETT and SHAPIRO, JJ.

HOPKINS, Justice.

Essentially, the question before us is whether the complaint states a cause of action against the defendant Drackett Products Company (Drackett). We hold that it does and, accordingly, modify the order of Special Term which dismissed the complaint against Drackett by reinstating the complaint. We affirm the remainder of the order which denied, with leave to renew, the plaintiffs' cross motion for certain procedural relief. We believe that Special Term acted appropriately in denying the cross motion.

The complaint pleads six causes of action, each of which is directed toward certain of the defendants, but we deal here only with the sufficiency of the causes of action naming Drackett as defendant. Besides the formal pleading, the allegations are amplified by affidavits submitted on behalf of the parties. The core of the plaintiffs' claim against Drackett may be summarized thus:

The defendants Durr purchased a can of Drano in April, 1974. Drano, a product manufactured by Drackett, is designed and sold for the purpose of unclogging drains. The Durrs discarded the can by placing it within a trash bag in front of their house, although only a part of the contents of the can had been used. Drano is designed and intended to be used by the consumer through pouring one tablespoon of the product down a drain, followed by one cup of cold water. The infant plaintiff was injured when the infant defendant Bossert, together with the infant plaintiff, removed the can from the bag in which it had been discarded and poured water into the can, whereupon it exploded. This action by the infant plaintiff and his parents was then instituted.

The causes of action against Drackett assert that Drano is a dangerous, volatile and explosive product, which was inadequately and unsafely packaged, that the product and package had latent defects which rendered them unreasonably dangerous and that Drackett warranted, both expressly and implicitly, that the product was merchantable and without great danger in its use and that it was fit for the purpose to which it was intended to be put. The question is, consequently, whether the complaint, liberally viewed as a pleading, states valid causes of action on the theories of strict liability and warranty.

Drackett's ground for dismissal is that, under any theory of product liability, no recovery may be allowed when it appears that the infant plaintiff was injured as a result of the misuse and mishandling of the can of Drano. Drackett points out that the infant plaintiff was neither a buyer nor a third-party beneficiary of the buyer and, therefore, derived no rights under the law of warranty. We cannot say, however, at this pleading stage in the litigation, that the plaintiffs may not ultimately be entitled to recovery.

The allegations in the complaint that Drackett manufactured and marketed a dangerous product, defectively and unsafely packaged, liberally construed (see Condon v. Associated Hosp. Service, 287 N.Y. 411, 414, 40 N.E.2d 230, 231), are fairly susceptible of the claim that inadequate or no warning was given by Drackett of the latent dangers reasonably to be foreseen which might result from the use or misuse of the product. The manufacturer of a dangerous product under such circumstances is under a duty to exercise reasonable care to provide proper warnings (McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 68--69, 226 N.Y.S.2d 407, 411--412, 181 N.E.2d 430, 433; Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 115, 150 N.Y.S.2d 792, 796, 134 N.E.2d 63, 66; Carey v. Hercules Chem. Corp., 51 A.D.2d 697, 379 N.Y.S.2d 407; Restatement, Torts 2d, § 402A; 1 N.Y. Pattern Jury Instructions (2d ed.), 2:135). No longer is it a barrier to recovery that the loss suffered came about as the result of the use of the product by one not the purchaser, or an employee or relative of the purchaser (cf. Codling v. Paglia, 32 N.Y.2d 330, 338--341, 345 N.Y.S.2d 461, 465--468, 298 N.E.2d 622, 625--627). In Howard Stores Corp. v. Pope (supra), for example, the plaintiffs alleged that a destructive fire occurred when an unknown person ignited lacquer inadequately labelled or unlabelled and that the plaintiffs' building was thereby damaged; the complaint was held to state a cause of action because the cans of lacquer were alleged to be improperly labelled or not labelled at all by the manufacturer and distributor.

Indeed, the true test of liability is not the identity or character of the user who is injured; it is, rather, whether the risks reasonably to be foreseen would arise from a misuse reasonably to be foreseen (Suchomajcz v. Hummel Chem. Co., 3 Cir., 524 F.2d 19, 28; Mazzi v. Greenlee Tool Co., 2 Cir., 320 F.2d 821, 823; Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914). That test is derived from the principle that foreseeability includes the probability of the occurrence of a general type of risk involving the loss, rather than the probability of the occurrence of the precise chain of events preceding the loss (2 Harper & James, Law of Torts, § 18.2, p. 1026; § 20.5(6...