Palmatier v. Mr. Heater Corp.

159 A.D.3d 1084

71 N.Y.S.3d 717

Sarah PALMATIER, Plaintiff,

v. MR. HEATER CORPORATION et al., Appellants,andAt Last Sportswear, Inc., Formerly Known as Shahi International Imports, Inc., et al., Respondents, et al., Defendants.

524730

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 19, 2018

Decided and Entered: March 1, 2018

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Edward D. Laird Jr. of counsel), for appellants.

Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for At Last Sportswear, Inc., respondent.

O'Connor, O'Connor, Bresee & First, PC, Albany (Carol E. Crummey of counsel), for Wal–Mart East, LP and others, respondents.

Before: Garry, P.J., McCarthy, Mulvey and Aarons, JJ.

MEMORANDUM AND ORDER

McCarthy, J.Appeal from an order of the Supreme Court (Gilpatric, J.), entered November 9, 2016 in Ulster County, which granted certain defendants' motions for summary judgment dismissing the complaint against them.

Plaintiff was wearing an ankle-length brown skirt with a knee-length white dress over it as she briefly warmed herself by an unvented propane heater. Her clothing caught fire and she suffered injuries. Plaintiff commenced two actions, now consolidated, against, among others, the corporations that allegedly sold the white dress that plaintiff was wearing (defendants Wal–Mart East, LP, Wal–Mart Stores East, Inc., Wal–Mart Stores, Inc. and Wal–Mart Associates [hereinafter collectively referred to as the Wal–Mart defendants] ), distributed the dress (defendant At Last Sportswear, Inc.) and manufactured, designed and distributed the heater (defendants Mr. Heater Corporation, Enerco Group, Inc. and Tractor Supply Company [hereinafter collectively referred to as the Enerco defendants] ). Following discovery, At Last Sportswear and the Wal–Mart defendants moved for summary judgment dismissing the complaint and any cross claims asserted against them contending, among other things, that the dress was not defective, that it did not need a warning label and that any alleged defect did not proximately cause plaintiff's injuries. Plaintiff did not oppose the motions; only the Enerco defendants did. Supreme Court granted the motions. The Enerco defendants appeal.

Contrary to the arguments of the Wal–Mart defendants, the Enerco defendants were entitled to bring this appeal because they were aggrieved by Supreme Court's order (see CPLR 5511 ). Pursuant to CPLR 1601(1), when a verdict in a personal injury action determines that two or more tortfeasors are jointly liable and a defendant is found to be responsible for 50% or less of the total liability, that defendant will not be required to pay the claimant for more than that defendant's share of the noneconomic loss (see Rangolan v. County of Nassau, 96 N.Y.2d 42, 46, 725 N.Y.S.2d 611, 749 N.E.2d 178 [2001] ). CPLR article 16 applies automatically, even if a defendant does not plead it as an affirmative defense, though the Enerco defendants did raise this defense in their answer (see CPLR 1601[1] ; Cooper v. Burt's Reliable, Inc., 105 A.D.3d 886, 888, 964 N.Y.S.2d 195 [2013] ; Marsala v. Weinraub, 208 A.D.2d 689, 690, 617 N.Y.S.2d 809 [1994] ).¹ Although liability can be apportioned between any tortfeasors, whether they are codefendants or nonparties, if an alleged tortfeasor was a codefendant whom the court had dismissed from the case, the law of the case doctrine would preclude the remaining defendants from introducing at trial any evidence regarding the same type of defect or error by that alleged tortfeasor that was previously litigated (see Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [2012] ). Thus, the Enerco defendants were entitled to challenge motions by any codefendants seeking to be released from the action, they were aggrieved by any orders granting dismissal and they could, therefore, appeal any such orders.

Supreme Court erred in granting the motions by At Last Sportswear and the Wal–Mart defendants for summary judgment dismissing the causes of action alleging that the white dress was defectively designed. To begin, viewing the evidence in the light most favorable to the nonmoving parties and granting them every favorable inference to be drawn from the evidence (see Dann v. Family Sports Complex, Inc. 123 A.D.3d 1177, 1179, 997 N.Y.S.2d 836 [2014] ), there is a factual question as to which garment caught fire first. The record evidence also raises questions regarding whether the dress contained any design defects. Generally, a jury should determine from all of the evidence whether a product is defectively designed (see Hoover v. New Holland N. Am., Inc., 23 N.Y.3d 41, 54, 988 N.Y.S.2d 543, 11 N.E.3d 693 [2014] ). Here, the moving defendants initially established their prima facie entitlement to summary judgment. Their expert opined that the dress materials complied with and exceeded the requirements of the Federal Flammable Fabrics Act ( 15 USC § 1191 et seq. [hereinafter FFA] ) and accompanying regulations (16 CFR part 1610) for general wearing apparel, as well as the industry standard, that the dress was reasonably safe and suitable for its intended use, that it was not defective in any manner and that this type of 100% cotton dress was a standard commodity. While we acknowledge that compliance with the FFA standards "is merely some evidence of due care and does not preclude a finding of negligence" ( Mercogliano v. Sears, Roebuck & Co., 303 A.D.2d 566, 566, 756 N.Y.S.2d 472 [2003] ; see Palmatier v. Mr. Heater Corp., 156 A.D.3d 1178, 1180, 67 N.Y.S.3d 342 [2017] ; Feiner v. Calvin Klein, Ltd., 157 A.D.2d 501, 502, 549 N.Y.S.2d 692 [1990] ; Sherman v. Lowenstein & Sons, 28 A.D.2d 922, 922, 282 N.Y.S.2d 142 [1967] ; but see Spiconardi v. Macy's E., Inc., 83 A.D.3d 472, 473, 923 N.Y.S.2d 28 [2011] ), the moving defendants' expert based his opinion that the dress was not defective on his 45 years of experience in the industry, not just on the FFA testing.

In response, the Enerco defendants submitted an affidavit from their own expert, who opined that the FFA standards are insufficient to determine whether a garment is safe because it addresses only some factors affecting flammability of the fabric but not the design of the garment itself (see Vail v....