VanIderstine v. Lane Pipe Corp.

• Decision Date: 09 November 1982
• Citation: 89 A.D.2d 459,455 N.Y.S.2d 450
• Parties: Glenn R. Vaniderstine, an Infant by Norman W. VanIderstine, his f/n/g and Norman W. VanIderstine, Individually, Appellants, v. LANE PIPE CORPORATION, et al., Defendants, and County of Erie, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 450

455 N.Y.S.2d 450

89 A.D.2d 459

Glenn R. Vaniderstine, an Infant by Norman W. VanIderstine his f/n/g and Norman W. VanIderstine Individually, Appellants, v. LANE PIPE CORPORATION, et al., Defendants and County of Erie, Respondent.

Supreme Court, Appellate Division Fourth Department.

Nov. 9, 1982.

Paul William Beltz, P.C., Buffalo, for appellants (John Streb, Buffalo, of counsel).

Jaeckle, Fleischmann & Mugel, Buffalo, for respondent County (Howard Rosenhoch, Buffalo, of counsel).

Before SIMONS, J.P., and HANCOCK, CALLAHAN, DENMAN and BOOMER, JJ.

SIMONS, Justice Presiding.

Plaintiffs, a father and his infant son, sue Erie County and others, seeking to recover for injuries sustained by the infant in a 1971 automobile accident. The accident occurred when the vehicle in which the infant was a passenger traveled off the highway and struck a guardrail. Alleging that the guardrail was defective, plaintiffs state causes of action in negligence, strict products liability and breach of express and implied warranty. The County moved to dismiss the causes of action in strict products liability and warranty and Special Term, relying principally upon the policy considerations stated in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63; see also, Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 412 N.Y.S.2d 842, 385 N.E.2d 581, granted the motion (107 Misc.2d 981, 436 N.Y.S.2d 183).

The claim arises from the allegedly defective performance by the County of a function which is quintessentially a governmental service--the construction and maintenance of a highway and the guardrails along it. Plaintiffs seek to cast this conduct in the form of a commercial transaction and thereby expose the County to liability determined by products liability rules, rules which permit recovery under far less stringent standards of culpability than the customary reasonable care standards of negligence. A traditional analysis of those rules establishes, however, that plaintiffs' second and third causes of action were properly dismissed by Special Term and its order should be affirmed. The strict liability cause of action fails because in erecting the guardrail the County did not design, manufacture or assemble a product and place it in the stream of commerce; it performed a service. The warranty cause of action fails because there was no sale between the parties. Erie County may indeed be liable for damages to plaintiffs because its culpable conduct, if such there was, contributed to the cause of this accident, but liability on the facts pleaded can be premised on negligence only. Although the parties seem to have some doubt on the matter, nothing that we said in Rainbow v. Elia Building Co., 49 A.D.2d 250, 373 N.Y.S.2d 928, is to the contrary.

I

The doctrine of strict products liability renders the manufacturer of a defective product liable to any person injured thereby, regardless of privity, foreseeability or due care, if the defect was a substantial factor in bringing about the injury and provided (1) that at the time of the occurrence the product was being used for the purpose and in the manner normally intended, (2) that if the person injured 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) that by the exercise of reasonable care the person injured would not otherwise have averted the injury (Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461, 298 N.E.2d 622; Rainbow v. Elia Building Co., 79 A.D.2d 287, 436 N.Y.S.2d 480, affd. 56 N.Y.2d 550, 449 N.Y.S.2d 967, 434 N.E.2d 1345; Dudley Const., Inc. v. Drott Manufacturing Co., 66 A.D.2d 368, 412 N.Y.S.2d 512). The defect may result either from a mistake in manufacturing, from improper design or from the inadequacy or absence of warnings for the use of the product (Robinson v. Reed-Prentice, 49 N.Y.2d 471, 478-479, 426 N.Y.S.2d 717, 403 N.E.2d 440; Opera v. Hyva, 86 A.D.2d 373, 376-377, 450 N.Y.S.2d 615).

The development of the strict products liability doctrine was an outgrowth of the contractual breach of warranty cause of action. As a tort it eliminated the constraint upon recovery imposed by warranty's privity requirement (Martin v. Dierck Equipment Co., 43 N.Y.2d 583, 403 N.Y.S.2d 185, 374 N.E.2d 97). The growth of modern commercial marketing provided the rationale for this development. It necessitated the creation of a remedy which would protect persons who were not in privity with the manufacturer or seller of a defective product (see Randy Knitwear v. American Cyanamid Co., 11 N.Y.2d 5, 12-13, 226 N.Y.S.2d 363, 181 N.E.2d 399; see, also, 2C Part 2, Warren's Negligence, ch. 88, § 1.01). The courts found the change warranted because of the ever increasing complexity of modern products which often makes the manufacturer the only one "who can fairly be said to know and to understand when an article is suitably designed and safely made for its intended purpose" and because the economic burden resulting from the manufacture of defective products will ultimately fall on the manufacturer "who alone has the practical opportunity, as well as a considerable incentive, to turn out useful, attractive, but safe products" (Codling v. Paglia, 32 N.Y.2d at 340-341, 345 N.Y.S.2d 461, 298 N.E.2d 622, supra). The rule is intended to protect persons injured by defective products placed in the stream of commerce (see Restatement, Torts 2d, § 402A, comments c and f).

With that background, we turn to the parties' moving papers. They establish that in 1958 Erie County reconstructed Rice Road, a county highway and that the guardrail under consideration in this case was an incidental part of that work. It was designed by County Engineers in connection with the reconstruction and assembled by county employees from parts purchased elsewhere. Manifestl the guardrail was not the product of modern commercial marketing practices. There were no distant consumers of it who relied, to their injury, on national advertising claims of its safety or reliability. Nor are those plaintiffs who may be injured by it faced with the difficult job of tracing responsibility for any incompetent workmanship in its making. The designer and assembler of the guardrail are known and at hand and their conduct can be examined and evaluated without difficulty. Furthermore, the second important predicate for strict products liability, risk distribution, is an inappropriate consideration when reviewing the performance of a governmental function, and particularly so when there is no mass production or commercial distribution of the "product" (for illustrations of governmental activity which could involve tort liability for defective products see Gielskie v. State of New York, 9 N.Y.2d 834, 216 N.Y.S.2d 85, 175 N.E.2d 455 Lindenhauer v. State of New York, 45 A.D.2d 73, 356 N.Y.S.2d 366 ). Thus, there is no need for lesser standards of proof before permitting recovery in this case.

In sum, the County has not produced a product for sale and placed it in the stream of commerce and that being so, the action in strict products liability will not lie (see Farina v. Niagara Mohawk Power Corp., 81 A.D.2d 700, 438 N.Y.S.2d 645; Mastro v. County of Schenectady, 74 A.D.2d 976, 426 N.Y.S.2d 187; Yearke v. Zarcone, 57 A.D.2d 457, 462, 395 N.Y.S.2d 322; see, also, restatement Torts 2d, § 402A and comments c and f thereto). That was the holding of an Illinois court in an analogous guardrail case, Maddan v. R.A. Cullinan & Son, Inc., 88 Ill.App.3d 1029, 44 Ill.Dec. 233, 411 N.E.2d 139. In Maddan, the plaintiff contended that a partially constructed guardrail was a product for strict liability purposes. The court dismissed the claim, deciding first that since the guardrail had not been completed at the time of the accident, it had not left the contractor's control and entered the stream of commerce. It went on to state, however, that even if the guardrail had been completed, the result would be the same--plaintiff could not recover in a cause of action premised on strict products liability. Similar reasoning was applied to dismiss the strict liability claims in Mastro v. County of Schenectady (supra), an action against the county for personal injuries allegedly sustained as the result of the county's negligent design and construction of a parking lot...