Willard Van Dyke Productions, Inc. v. Eastman Kodak Co.

• Decision Date: 28 March 1963
• Citation: 189 N.E.2d 693,12 N.Y.2d 301,239 N.Y.S.2d 337
• Parties: , 189 N.E.2d 693 WILLARD VAN DYKE PRODUCTIONS, INC., Respondent, v. EASTMAN KODAK COMPANY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 337

239 N.Y.S.2d 337

12 N.Y.2d 301, 189 N.E.2d 693

WILLARD VAN DYKE PRODUCTIONS, INC., Respondent, v. EASTMAN KODAK COMPANY, Appellant.

Court of Appeals of New York.

March 28, 1963.

Haliburton Fales, II, and William D. Conwell, New York City, for appellant.

Henry J. Robinson, Jr., New York City, for respondent.

FULD, Judge.

This case, submitted to the Appellate Division on an agreed statement of facts (Civ.Prac.Act, §§ 546-548) and here by our leave, poses the question whether the written notice accompanying the sale of film by the defendant Eastman Kodak Company is effectual to limit its liability for negligence in the subsequent processing of that same film.

In January of 1959 the plaintiff, a corporation engaged in commercial photography, purchased a number of rolls of Kodak Ektachrome Commercial 16mm film from the defendant's agent in New York. The plaintiff had contracted with the Western Electric Company to make a moving picture of certain of its facilities in Alaska and the film in question was bought for such use. Accordingly, the plaintiff took the film to Alaska and there it was properly exposed, it being admitted that a negative resulted which, if properly developed, would have resulted in prints commercially valuable and entirely satisfactory to fulfill plaintiff's contract with Western Electric. After exposure in Alaska, the plaintiff delivered the film to defendant's laboratory in New York to be developed. It was in good condition when received by the defendant for processing but during its development a substantial portion was so damaged by a deposit of foreign material and by ink marks that such portion became commercially valueless; on the basis of the submission, the inference is warranted that the defendant was negligent. (See Aronette Mfg. Co. v. Capitol Piece Dye Works, 6 N.Y.2d 465, 469, 190 N.Y.S.2d 361, 364, 160 N.E.2d 842, 844.)

Although the plaintiff incurred expenses of over $1,500 in retaking certain sequences in order to fulfill its contract with Western Electric and sought reimbursement for such expenses, the defendant has repaid the plaintiff only for the cost of the damaged film and for the prorata cost of its processing. In taking this position, the defendant relies upon a 'notice' set forth on a label on the box containing the film. It states rather plainly, in black type against a white background,

'FILM PRICE DOES NOT INCLUDE PROCESSING' and includes, in much smaller type, black against a blue background, this recital:

'READ THIS NOTICE

'This film will be replaced if defective in manufacture, labeling, or packaging, or if damaged or lost by us or any subsidiary company. Except for such replacement, the sale or subsequent handling of this film for any purpose is without warranty or other liability of any kind. Since dyes used with color films, like other dyes, may, in time, change, this film will not be replaced for, or otherwise warranted against, any change in color.'

It is conceded that the plaintiff was aware of the nature of the label's contents, and, as noted above, the question for our decision is whether it effectively limits the defendant's liability for negligence in developing the film.

The law looks with disfavor upon attempts of a party to avoid liability for his own fault and, although it is permissible in many cases to contract one's self out of liability for negligence, the courts insist that it must be absolutely clear that such was the understanding of the parties. In other words, it must be plainly and precisely provided that 'limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility.' (Howard v. Handler Bros. & Winell, 279 App.Div. 72, 75-76, 107 N.Y.S.2d 749, 752, affd. 303 N.Y. 990, 106 N.E.2d 67; see, also, Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 296-297, 220 N.Y.S.2d 962, 963, 964, 177 N.E.2d 925; Kaufman v. American Youth Hostels, 5 N.Y.2d 1016, 185 N.Y.S.2d 268, 158 N.E.2d 818, modfg. 6 A.D.2d 223, 177 N.Y.S.2d 587; Boll v. Sharp & Dohme, 307 N.Y. 646, 120 N.E.2d 836, affg. 281 App.Div. 568, 121 N.Y.S.2d 20; Walters v. Rao Electrical Equipment Co., 289 N.Y. 57, 43 N.E.2d 810, 143 A.L.R. 308; Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41, 2 N.E.2d 35, 37; Employers' Liability Assurance Corp. v. New York Linen Supply & Laundry Co., 239 N.Y. 560, 147 N.E. 195; Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 N.Y. 180,...