Palmatier v. Mr. Heater Corp.

163 A.D.3d 1228

81 N.Y.S.3d 610

Sarah PALMATIER, Respondent,

v.MR. HEATER CORPORATION et al., Defendants, andGary Anderson, Individually and Doing Business as Money G Cards & Collectibles, Appellant.

525838

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

Calendar Date: May 31, 2018

Decided and Entered: July 12, 2018

Stockton, Barker & Mead, LLP, Troy (Robert S. Stockton of counsel), for appellant.

Mainetti, Mainetti & O'Connor, PC, Kingston (Michael E. Kolb of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from an order of the Supreme Court (Gilpatric, J.), entered January 17, 2017 in Ulster County, which, among other things, denied defendant Gary Anderson's motion for summary judgment dismissing the complaint and all cross claims against him.

Plaintiff was injured when her clothing caught on fire as she warmed herself near an unvented room heater in a store.¹ She commenced two actions, now consolidated, seeking damages from, as pertinent here, the store's lessee and operator, defendant Gary Anderson (hereinafter defendant). Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint and all cross claims against him. Supreme Court denied the motion, finding that there were issues of fact as to whether defendant was negligent in his placement of the heater for use in the store and, if so, whether his negligence was a proximate cause of plaintiff's injuries. Defendant appeals.

Initially, we reject defendant's contention that the doctrine of law of the case precludes litigation of the issue of the heater's placement. Under that rule, "[w]here a court directly passes upon an issue which is necessarily involved in the final determination on the merits, [the court's determination] becomes the law of the case" ( Scofield v. Trustees of Union Coll., 288 A.D.2d 807, 808, 734 N.Y.S.2d 262 [2001] [internal quotation marks and citation omitted]; see Karol v. Polsinello, 127 A.D.3d 1401, 1402, 8 N.Y.S.3d 447 [2015] ; Papa Gino's of Am. v. Plaza at Latham Assoc., 144 A.D.2d 172, 172, 535 N.Y.S.2d 116 [1988] ). In September 2015, Supreme Court granted a motion by defendant's grandfather, defendant Gary Anderson Sr. (hereinafter Anderson), for summary judgment dismissing the complaint and any cross claims against him. In doing so, the court found that Anderson had established as a matter of law that he was not responsible for the installation of the heater, as the record supported his claims that defendant had carried out the installation and that Anderson had merely handed tools to defendant and observed his work. The court further noted that "there is no ... evidence that the installation of the heater was the cause of plaintiff's injuries." Read in context, this statement addressed the question of potential negligence related to the heater's installation rather than its placement in the store, which is the matter at issue in the current motion. Additionally, even assuming that the earlier finding could be read to apply to the heater's placement, the law of the case doctrine would not apply, as it was obiter dictum that was not "essential to the determination of the [prior motion]" ( Karol v. Polsinello, 127 A.D.3d at 1402–1403, 8 N.Y.S.3d 447 ; see Rosen v. Mosby, 148 A.D.3d 1228, 1233, 51 N.Y.S.3d 629 [2017], lv dismissed 30 N.Y.3d 1037, 91 N.E.3d 1214 [2017] ; Matter of McNamee, Lochner, Titus & Williams [Killeen], 267 A.D.2d 919, 922, 700 N.Y.S.2d 525 [1999] ).

Turning to the merits, "[w]henever the general public is invited into stores, office buildings and other places of public assembly, the owner [or occupant] is charged with the duty of providing the public with a reasonably safe premises" ( Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 557, 289 N.Y.S.2d 401, 236 N.E.2d 632 [1968] ; see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ; Hendricks v. Lee's Family, 301 A.D.2d 1013, 1013, 754 N.Y.S.2d 454 [2003] ). Defendant submitted the testimony of Brian Vandrak, the vice-president of engineering for defendant Enerco Group, Inc., the manufacturer of the heater. Vandrak acknowledged that the heater's installation instructions and manual provided that the heater should not be placed in a high-traffic area, explaining, "[T]his is a heater. It's fire in a box and obviously you don't want people going back and forth [near] this product with a chance of having any kind of extended contact with it." He stated that the location where the heater was placed—in the main area of the store, a few feet from the door to the only bathroom—complied with the manual's warning, saying, "It was far enough away.... [I]t wasn't a hallway. The room was a very wide open area.... It was easy to get access to the bathroom not being near the heater." This testimony established on a prima facie basis that the placement of the heater was reasonably safe and shifted the burden to plaintiff to demonstrate the existence of a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).

In opposition, plaintiff relied upon a section of the then-applicable version of the Fuel Gas Code of New York State providing that an unvented room heater must be installed as directed by the manufacturer (see Fuel Gas Code of N.Y. St § 621.1 [2007] ). In turn, the manual for the heater at issue here provided, in accordance with standards established by the American National Standards Institute, that "[d]ue to high temperatures, [the] heater should be kept out of traffic" and should never be installed "in high-traffic areas." The manual further stated that the heater was intended for supplemental use and should never be installed as a primary heat source. Plaintiff submitted defendant's deposition testimony that he chose not to read or refer to the manual, although he was aware that it contained instructions about the safe placement of the heater. Significantly, he acknowledged that the heater was the store's only source of heat. As for whether the heater was kept out of traffic, defendant stated that customers often spent several hours in the store during regularly-conducted gaming tournaments, that customers moving between the bathroom and certain tables and chairs used during...