Wallace v. Parks Corp.

• Decision Date: 09 June 1995
• Parties: , 28 UCC Rep.Serv.2d 825 Mildred I. WALLACE and John Martin Wallace, Jr., Individually and as Parents and Natural Guardians of John M. Wallace, III, Jennilyn Wallace and Jeffrey Wallace, Infants, Respondents, v. PARKS CORPORATION and Fay's Incorporated, Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 570

629 N.Y.S.2d 570

212 A.D.2d 132, 28 UCC Rep.Serv.2d 825

Mildred I. WALLACE and John Martin Wallace, Jr. Individually and as Parents and Natural Guardians of John M. Wallace, III, Jennilyn Wallace and Jeffrey Wallace Infants, Respondents, v. PARKS CORPORATION and Fay's Incorporated, Appellants, et al., Defendants.

Supreme Court, Appellate Division,

Fourth Department.

June 9, 1995.

Block and Colucci, P.C. by Anthony J. Colucci, III and John J. Marchese, Buffalo, for appellants-respondents.

Petrone & Petrone by James Godemann, Utica, for respondents-appellants.

Before FALLON, J.P., and WESLEY, DAVIS and BOEHM, JJ.

BOEHM, Justice:

Plaintiff Mildred I. Wallace was injured when camp stove fuel manufactured by defendant Parks Corporation (Parks) and sold by defendant Fay's Incorporated (Fay's) (collectively defendants) ignited in plaintiffs' kitchen, causing a fire that spread quickly and surrounded her. Defendants assert that plaintiffs' causes of action alleging defective design of the camp fuel because of its dangerously low flash point and defective design of the container, and for breach of express and implied warranties, are preempted by the Federal Hazardous Substance Act (FHSA) (15 U.S.C. § 1261 et seq.). We disagree.

I

The accident occurred when Mrs. Wallace was refilling a Coleman camp stove with the camp stove fuel. As Mrs. Wallace was refilling the camp stove on her kitchen stove, using a funnel to pour the fuel from the container into the camp stove, there was a sudden flash and the fuel ignited. When she realized that the can of fuel was in flames, Mrs. Wallace dropped the can to the floor. The flames quickly spread, trapping Mrs. Wallace in a small area in her kitchen. She attempted to extinguish the fire with a fire extinguisher, but the extinguisher did not work.

Mrs. Wallace's husband and the couple's two sons and daughter were in the next room when the fire erupted, and her husband and two sons ran into the dining room, where they saw a wall of flames, behind which they heard Mrs. Wallace screaming. The daughter, Jennilyn, was also in the living room, and ran out the front door when she heard the screams. She did not actually see the fire, although she saw her mother shortly afterward. Mr. Wallace and the two boys, John, III, and Jeffrey, were unable to reach Mrs. Wallace or extinguish the flames. Mrs. Wallace finally escaped through the cellar stairs to the outside via the cellar door.

Plaintiffs commenced this action, asserting claims arising out of (1) the negligent design and manufacture of the camp fuel and container by Parks, and the selling of an unreasonably dangerous product by Fay's; (2) strict products liability on the basis that the container and/or the camp fuel was improperly designed, fabricated, assembled, tested, inspected, marketed, sold, supplied and/or distributed by Parks and Fay's; and (3) breach of the implied warranty of merchantability and breach of express warranty. Mr. Wallace, individually and on behalf of the three children, also brought a cause of action for negligent infliction of emotional distress.

After issue was joined, defendants moved for summary judgment, arguing that the facts preclude a design defect claim; that the FHSA preempts any claim based upon inadequate warnings; and that the claims for negligent infliction of emotional distress are insufficient as a matter of law.

In response to defendants' motion, plaintiffs cross-moved for leave to serve a second amended complaint. In support of their motion, plaintiffs submitted an affidavit from Dr. C.J. Abraham, an expert in the fields of products liability and safety engineering. It was Dr. Abraham's opinion that the fire resulted from vapors from the camp fuel being ignited by the pilot lights. In his opinion, the injuries caused by the fire could have been significantly minimized or avoided had the container been equipped with a spring trigger closing mechanism and a flame arrester. According to Dr. Abraham, the fuel could not be safely poured using a funnel as directed, and should not be poured indoors. He stated that the directions and warnings on the container were inadequate, and that the container was misbranded and not in compliance with the minimum standards required by the FHSA.

Supreme Court granted in part defendants' motion for summary judgment and dismissed plaintiffs' claims based upon defendants' failure to warn and denied defendants' motion for summary judgment in all other respects. The court also granted plaintiffs' cross motion for leave to serve a second amended complaint, and denied defendants' motion for a protective order prohibiting the deposition of the technical director of Parks.

II

Federal courts almost without exception now hold that the Federal statutes creating labeling requirements, such as those contained in the FHSA, preempt common-law failure to warn and inadequate labeling claims (see, Moss v. Parks Corp., 985 F.2d 736, cert. denied 509 U.S. 906, 113 S.Ct. 2999, 125 L.Ed.2d 693; DeHaan v. Whink Prods., 1994 WL 24322 [N.D.Ill.]; Lee v. Boyle, 792 F Supp 1001; see also, Papas v. Upjohn Co., 985 F.2d 516, cert. denied sub nom. Papas v. Zoecon Corp., 510 U.S. 913, 114 S.Ct. 300, 126 L.Ed.2d 248; Higgins v. Monsanto Co., 862 F.Supp. 751). Both the Second and Third Departments have reached the same result (see, Warner v. American Fluoride Corp., 204 A.D.2d 1, 616 N.Y.S.2d 534; June v. Laris, 205 A.D.2d 166, 618 N.Y.S.2d 138).

While Papas v. Upjohn Co. (supra) specifically dealt with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), "[t]he preemption issues arising under FHSA are identical to those arising under FIFRA" (Chemical Specialties Mfrs. Assn. v. Allenby, 958 F.2d 941, 945; see also, Moss v. Parks Corp., supra ). In Papas, the 11th Circuit, upon remittal from the U.S. Supreme Court, was confronted with the issue whether, in light of Cipollone v. Liggett Group, 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407, a plaintiff's common-law tort claims based on inadequate labeling were expressly preempted by FIFRA. FIFRA provides that a State may not impose "any requirements for labeling or packaging in addition to or different from those required" by FIFRA (7 USC 136v(b)). The Papas court concluded that common-law tort actions, especially those arising out of implied warranties, constitute a form of "requirements" within the meaning of FIFRA, and are therefore preempted "[t]o the extent that state law actions for damages depend upon a showing that a * * * manufacturer's 'labeling or packaging' failed to meet a standard 'in addition to or different from' FIFRA requirements" (Papas v. Upjohn Co, supra, at 518). In Cipollone, the Supreme Court held that the Federal Cigarette Labeling and Advertising Act of 1965, as amended in 1969, while preempting State failure to warn claims, did not preempt all common-law claims, such as express warranty and fraudulent misrepresentation (supra, 505 U.S., at 523, 112 S.Ct., at 2621).

The prevailing rule today is that a plaintiff's claims are preempted only "to the extent that [they] require a showing that defendants' labeling and packaging should have included additional, different, or alternatively stated warnings from those required [in this case] under FIFRA" (Arkansas-Platte & Gulf v. Van Waters & Rogers, 981 F.2d 1177, 1179). While claims resting on failure to warn or communicate labeling information are preempted, claims for negligent testing, manufacturing and formulating are not (see, Worm Bros. v. American Cyanamid Co., 5 F.3d 744, 747).

Thus, non-labeling claims for breach of implied warranty of merchantability (Wright v. Dow Chem. U.S.A., 845 F.Supp. 503), for breach of implied warranty of fitness for a particular purpose (Casper v. E.I. Du Pont De Nemours and Co., 806 F.Supp. 903), or brought under State common-law strict liability (Higgins v. Monsanto Co., supra; Fisher v. Chevron Chem. Co., 716 F.Supp. 1283) are not preempted. Although the cases cited deal with labeling under FIFRA, the same principle applies under FHSA (see, DeHaan v. Whink Prods. Co., supra ).

Since the Supreme Court's Cipollone decision, courts have essentially used a two-prong analysis to determine whether State claims are preempted by FIFRA and similar Federal labeling requirement statutes, including FHSA. That analysis requires an application of the statutory preemption criteria, (1) whether a plaintiff's claim is based upon a requirement imposed by the State and, (2) whether the claim relates to labeling or packaging (Higgins v. Monsanto Co., supra, at 760). As already noted, courts applying that analysis have almost uniformly held that failure to warn claims, whether couched in terms of products liability or breach of implied warranty, are preempted. Breach of express warranty claims, however, are not preempted, because such liability arises not from a requirement imposed by State law, but from a promise voluntarily made by the manufacturer (Cipollone v. Liggett Group, supra, 505 U.S., at 525, 112 S.Ct., at 2622). Thus, the court properly dismissed plaintiffs' failure to warn claims, and properly denied defendants' motion with respect to plaintiffs' express warranty claims.

FHSA does not preempt plaintiffs' implied warranty claims (see, Wright v. Dow Chem. U.S.A., supra; Casper v. E.I. Du Pont De Nemours and Co., supra ). Although such claims are based upon requirements imposed by State law, thus satisfying the first prong of the preemption analysis, not all of plaintiffs' claims relate to labeling and, thus, they do not satisfy the second prong. Under UCC 2-314(2)(e), (f), "goods to be merchantable must be at least such as * * * are adequately contained, packaged, and labelled as the agreement may require; and * * * conform to the promises or affirmations of fact made on the container or label, if any". Plaintiffs' claims that relate to the "promises or affirmations of fact made on the container or...