Plaintiffs, Defendants.

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. KENNETH A. DAVIS. Justice SARAH SPIEGEL, by her father and natural guardian, LOUIS SPIEGEL, and LOUIS SPIEGEL and AMY SCHILD SPIEGEL, individually, TRIAL/IA& PART 10 NASSAU COUNTY -against- Plaintiffs, 08/04/03 INDE No.: 16094/01 SUBMISSION DATE: DANIEL SCHREIER, an infant, by his mother and natural guardian, SUSAN SCHREIER, and ZIMMERMAN HOLDING COMPANY, Defendants. MOTION SEQUENCE #3 The following papers read on this motion: Notice of Motion/ Order to Show Cause... Answering Papers... Reply... Briefs: Plaintiff's/Petitioner's... Defendant's/Respondent's... Motion by the defendant Zimmerman Holding Co. pursuant to CPLR 3212, for an order dismissing the complaint insofar as asserted against it is granted. On August 21, 2001, the infant plaintiff Sarah Spiegel, then aged 11, her father, and co-defendant Daniel Schreier, aged 12 at the time, returned from a fishing trip on Mr. Spiegel's boat and arrived at Schreier's residence, where no one was home at the time (Schreier Dep., 4-5, ; Spiegel Dep., 13-15). Sarah's father then departed, advising that he would be returning later, after which Sarah and Daniel entered the house, played video games and watched a movie for a short period of time (Schreier Dep., 8; Spiegel Dep., 15-17). At some point shortly thereafter, the two became bored and decided that they would attempt to make a "campfire" in the backyard (Schreier Dep., 7-8, 39; Spiegel Dep., 15-17). According to Sarah, she and Daniel constructed a "teepee" composed of sticks surrounded by bricks under which they placed newspaper (Schreier 1

2 We., 8; Spiegel Dep., 17-18). Before lighting the fire, Daniel - whose mother was a professional artist (Canarick Dep., 7, 16) - entered his mother's basement studio and removed a one-quart can of denatured alcohol which had been packaged by co-defendant Zimmerman Holding Company ["Zimmerman"], an entity engaged in the business of packaging and then distributing solvents, alcohols, lacquers and thinners (Morris Dep., 5). Daniel returned to the back yard with the alcohol, which he applied to the teepee (Schreier Dep., 8, 46-48; Spiegel Dep., 18-19). The two then used matches they found in the house to ignite the sticks (Schreier Dep., 8-9; Spiegel Dep., 17-18). When the fire decreased in intensity, Daniel - holding the alcohol can in his hand - poured the fluid directly onto the fire (Schreier Dep., 10-11, 39, 46-47; Spiegel Dep., 17-18, 23-24). Almost immediately upon contact with the fire (Schreier Dep., 50), the stream of alcohol emitted from the can ignited, burned backwards and "went into the can itself" as Daniel was holding it in his right hand (Schreier Dep., 9-13; Spiegel Dep., 17-18, 24). Once the fluid inside the can itself ignited, it was forcibly expelled from the container in stream or ball of liquid "surrounded by fire" which splattered onto Sarah, who was standing near Daniel at the time (Schreier Dep., 11-12; 14; Spiegel Dep., 25). As a result, Sarah sustained burns on her legs, right arm, right elbow and stomach (Spiegel Dep., 26). Notably, the label affixed to the can describes the product as "[a]n economical, proprietary blend of ethyl and methyl alcohols for thinning shellacs and pigment shellac" and "[a]n accelerent fuel for alcohol torches, stoves and other alcohol related fuel appliances." The label twice advises that the product should be kept away from, "heat, sparks and flame" (Pltffs' Exh., "A"). Thereafter, by summons and complaint dated March 29, 2002, the plaintiffs Spiegel commenced the within action against Scheier and Zimmerman to recover damages for, inter alia, personal injuries sustained as a result of the incident (Def's Exh., "A"). Insofar as asserted against the movant Zimmerman, the complaint contains causes of action sounding in (1) breach of warranty; (2) breach of the duty to warn (2) negligence; and (3) strict products liability. More particularly, the complaint avers in sum, that Zimmerman knew or should have known, that its product would be utilized to ignite fires and that the potential existed for flames to propagate Page 2

3 back toward and then into the container (Cmplt., 9-12). The plaintiffs allege that in light of this allegedly foreseeable risk and danger, Zimmerman was duty-bound, but negligently failed, to package the fluid in a safe and proper container and incorporate appropriate and adequate warnings (Cmplt., 20, 25-26). "A strict liability cause of action which is based upon a design defect is actionable where a product is not reasonably safe for its intended use". Haiuht v. Banner Metals, Inc., 300 A.D.2d 356 (2d Dept. 2003); see also, Gebo v. Black Clawson Co., 92 N.Y.2d 387, 392 [1998]; Denny v. Ford Motor Co., 87 N.Y.2d 248, 257 [1995]; voss v. Black & Decker Mfs. Co., 59 N.Y.2d 102, [1983]). In addition, a plaintiff may recover in strict products liability or negligence for a manufacturer's failure to warn of the risks and dangers associated with the use of its product. See, Liriano v. Hobart Corp., 92 N.Y.2d 232, [1998]; Voss v. Black & Decker Mfs. Co., supra, at cf., Speller ex rel. Miller v. Sears, Roebuck and Co., 100 N.Y.2d 38, 41 [2003]). However, "'whether the action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer's burden to show that a defect in the product was a substantial factor in causing the injury"'. Clarke v. Helene Curtis, Inc., 293 A.D.2d 701, (2d Dept. 2002); quoting from, Tardella v. RJR Nabisco, 178 A.D.2d 737; Santorelli v. Apple & Eve, 282 A.D.2d Similarly, "while a cause of action in negligence will lie against a manufacturer where a defective product causes- a foreseeable injury, '[a] manufacturer need not incorporate safety features into its product so as to guarantee that no harm will come to every user no matter how careless or even reckless' I'. Bombara V. Rooers Bros. Corp., 289 A.D.2d 356, 357, (2d Dept. 2001); quoting from, Robinson v. Reed-Prentice Div. of Packase Mach. Co., 49 N.Y.2d 471, 481 [1980]). A claim sounding in breach of implied warranty will not lie where the allegedly dangerous product has been misused by the injured party Carbone bv Carbone v. Alauna by Alaclna, 239 A.D.2d 454, 456, (2d Dept. 1997). Upon the papers presented, Zimmerman has established its prima facie entitlement to summary judgment dismissing the plaintiffs' negligence, design defect, and failure to warn causes of action. The plaintiffs theories with respect to the purported need for warnings and the defective nature of the container (Cmplt., 201, rest upon the attenuated and speculative assumption that the Page 3

4 Daniel's use of the product as a fire accelerant was foreseeable. The Court disagrees. There is nothing of a probative nature in the record establishing that the product was designed or intended for use as a fire accelerant. Rather, the parties' submissions demonstrate that the contemplated and foreseeable uses of the product include, inter alia, thinning, cleaning, refinishing and cutting shellacs/varnishes, use as an alcohol fuel, and other cleaning and/or additive applications. Contrary to the plaintiffs' contentions, the fact that the product can be used as a fuel for "alcohol fuel related appliances", does not establish that expelling it directly from the can onto an open fire at close range is a foreseeable - much less intended - use of the item. Significantly, "[a] manufacturer's duty * * * does not extend to designing a product that is impossible to abuse * * *". Robinson v. Reed-Prentice Div. of Packase Mach. Co., supra, at ). It bears noting in this respect that the label - in clear language and on two separate occasions - directs users to keep the product away "from heat, sparks and flame"; cf., Rios v. Rockwell Intern. Corp., 268 A.D.2d 279, 280, (1st Dept. 2000). The statements made by the plaintiffs' expert with respect to the product's allegedly foreseeable use as an accelerant are conclusory and lacking in probative import (F. Dryer Aff., 5-6); see, Guadalupe v. Drackett Prods. Co., 253 A.D.2d 378 (1st Dept. 1998). Nor have the plaintiffs demonstrated, in opposition to the movant's prima facie showing, that the movant breached a duty to warn or an implied warranty relating to the container's fitness for its intended purpose. See, Sosna v. American Home Products, 298 A.D.2d 158, (1st Dept. 2002); Mansano v. United Finishing Service Corp., 261 A.D.2d 589, 590 (2d Dept. 1999); James v. Harrv Weinstein, Inc., 258 A.D.2d 562 (2d Dept. 1999); Carbone v. Alacrna bv Alaona, supra, at 456). Significantly, it is a plaintiff's "burden to prove that defendant's failure to warn was a proximate cause of his injury * * * and this burden includes adducing proof that the user of a product would have read and heeded a warning had one been given". Sosna v. American Home Products, supra, see, Guadalupe v. Drackett Prods. Co., supra; Carbone bv Carbone v. Alasna bv Alaqna, supra. See, also, Manqano v. United Finishins Service Corp., supra. Page4

5 Further, while the adequacy of a warning generally is a question of fact, in a proper case the court can decide the issue as a matter of law. Alessandrini v. Weverhauser Co., 207 A.D.2d 996. See, also, Schiller v. National Presto Industries, Inc., 225 A.D.2d 1053, A review of the relevant depositions submitted demonstrates that neither Daniel nor Sarah made any attempt to read or examine the product label, which - as noted - warns users to keep the product away "from heat, sparks and flame". cf., Rios v. Rockwell Intern. Corp., 268 A.D.2d 279, 280). Upon these facts, the movant has shown that the absence of alleged warnings relating to, inter alia, flashbacks cannot be viewed as a proximate cause of the injuries sustained; e.g., Uofold v. Generac Corn., 224 A.D.2d 1021; Rochester Refriseratins Corp. v. Easv Heat, Inc., 222 A.D.2d See, also, Sosna v. American Home Products, supra; Guadalupe v. Drackett Prods. Co., supra. In light of the foregoing determination, it is unnecessary to reach Zimmerman's alternate, statute of limitations argument as applied to the plaintiffs' breach of warranty cause of action. The Court has considered the plaintiffs' remaining contentions and finds that none generates triable issues of fact with respect to Zimmerman. Under the circumstances, the motion of co-defendant Zimmerman for summary judgment dismissing the complaint insofar as asserted against it, is granted. The foregoing constitutes the decision and order of the Court. Dated: A& Page 5