OPINION OF THE COURT
In this аppeal, we are asked to determine whether the Supreme Court properly dismissed, for failure to state a cause of action, plaintiffs’ proposed class action, which is based upon a purported defect in the front seat backrests of certain vehicles.
Plaintiffs commenced this proposed class action in June 1999 on behalf of themselves and all New York residents who own a “Class Vehicle,” which includеs various specified automobiles manufactured by defendants Ford Motor Company (Ford), General Motors Corporation (General Motors), and Saturn Corporation (Saturn),
Plaintiffs aver that the backrest, as designed, is unreasonably dangerous because “it is unstable and susceptible to rearward collapse in the event of a rear-end collision,” in that if a Class Vehicle is struck from the rear by another vehicle “the force of the occuрant’s body against the backrest of the seat can result in the rearward collapse of the backrest,” which in turn “can result * * * in neck and back injuries, paraplegia, quadriplegia, and even death.” Plaintiffs further maintain that the seat defect was aggravated by certain additional design flaws, and that defendants knew or should have known of the hazardous condition, yet “made a conscious and deliberate decision” against implementing an improved design, which would have included an additional recliner mechanism on the inboard side of the seats.
Plaintiffs continue that defendants “knowingly and intentionally concealed from the public the foreseeable risk of harm from seat collapses” and that as a result, plaintiffs “suffered economic loss” in that the Class Vehicles and seats did not meet reasonable consumer expectations and posed an unreаsonable risk of serious injury or death in the event of a rear-end collision. Plaintiffs maintain that class members were therefore compelled to “incur the expense of alternate transportation, or the expense of correcting the Defect.”
Plaintiffs sought compensatory damages “measured by the cost of correcting the Defect, not to exceed $5,000 for each Class Vehicle,” and interposed sevеn causes of action sounding in, respectively: (1) negligence; (2) strict liability; (3) breach of the implied warranty of merchantability; (4) negligent concealment and misrepresentation; (5) fraud; (6) unfair or deceptive business practices in violation of General Business Law §§ 349 and 350; and (7) civil conspiracy. Ford, General Motors and Saturn subsequently moved to dismiss the complaint for failure to state a cause of action and failure to state thе fraud claims with sufficient particularity. The motion court, in an order entered on or about May 30, 2000, granted the motions and dismissed the complaint in its entirety. Plaintiffs appeal and we now affirm.
It is well established that in determining whether to grant a motion to dismiss based upon a failure to state a cause of action pursuant to CPLR 3211 (a) (7), the pleading is to be af
In view of the foregoing, and as thе motion court correctly found, plaintiffs must plead actual injuries or damages, resulting from defendants’ conduct, as an essential element of each of the first six causes of action. See, e.g., negligence (Becker v Schwartz,
Plaintiffs herein, with regard to the issue of damages, have, as previously noted, specifically excluded from the putative class “all persons who have suffered pеrsonal injury as a result of the rearward collapse of a seat.” Indeed, plaintiffs do not allege that they have been in the type of accident that allegedly triggers the defect; that the seat back in any of the vehicles they own had, in fact, collapsed; or that they have suffered an
Plaintiffs’ claims, which defendants characterize as “tendency to fail” types of claims, have been addressed, in one form or another, by the United States District Court for the Southern District of New York, as well as a number of other courts in various jurisdictions. In Feinstein v Firestone Tire & Rubber Co. (
The District Court, in addressing motions for class certification, held that those plaintiffs whose tires had not malfunctioned could not maintain a cause of action for breach of implied warranty of merchantability since “[t]ires which lived full, productive lives were, by demonstration and definition, ‘fit for the ordinary purposes’ for which they were used; hence they were ‘merchantable’ under U.C.C. § 2-314” (id. at 602). Plaintiffs, in other words, failed to establish the necessary element of damage, and the court rejected plaintiffs’ argument “that a ‘common’ defect which never manifests itself ‘ipso facto caused economic loss’ and breach of implied warranty” (id. at 603), notwithstanding the fact that reports by the National Highway Traffic Safety Administration (NHTSA), and the House Committee on Interstate and Foreign Commerce, indicated that some of the tires had failed, or the fact that other complainants had commenced actions fоr actual injury or death, or that Firestone had entered into a voluntary recall
In Weaver v Chrysler Corp. (172 FRD 96 [SD NY]), allegedly defective integrated child safety seats, the shoulder clips of which purportedly unlatched and separated, gave rise to a putative class action, under the theories of fraud, negligent misrepresentation, breach of implied warranty, and violation of the New York State Consumer Protection Act, General Business Law § 349. The court dismissed the complaint, having determined that plaintiffs had not sufficiently pleaded damages. “Whеre, as here, a product performs satisfactorily and never exhibits the alleged defect, no cause of action lies” (id. at 100).
In Hubbard v General Motors Corp. (
The court, upon defendant’s motion, dismissed the complaint because plaintiff had failed to plead damages, since there were no allegations that plaintiff had experienced performance problems or attempted to resell his vehicle only to discover the value had decreased. The court held thаt “[pjurchasers of an allegedly defective product have no legally recognizable claim where the alleged defect has not manifested itself in the product they own. * * * Thus, a Suburban that performs satisfactorily and never exhibits the alleged braking system defect is fit for the purposes intended and does not give rise to a breach of warranty claim or any other” (id. at *3, at *9-10).
“[T]he evidence presented demonstrated that only a small percentage of the Samurais sold during the class period have been involved in rollover accidents, and real parties have impliedly conceded that nearly all of them have not. Because the vast majority of the Samurais sold to the putative class ‘did what they were supposed to do for as long as they were supposed to do it’ (Feinstein v. Firestone Tire and Rubber Co., supra,535 F. Supp. at p. 603 ), we conclude that these vehicles remained fit for their ordinary purpose. This being so, their owners are not entitled to assert a breach of implied warranty action against Suzuki * * *” (id. at 1298-1299, at 531).
See also, e.g., Yost v General Motors Corp. (
Plaintiffs, for the contrary position, rely on the decisions of two other courts, in New Jersey and Pennsylvania, which also
In the other case relied upon by plaintiffs, Green v General Motors Corp. (slip op No. L-4643-99 [NJ Super Ct 2000]), the New Jersey Superior Court likened plaintiffs’ claims to medical monitoring claims, which were recognized by the New Jersey Supreme Court in Ayers v Township of Jackson (106 NJ 557,
The New Jersey Supreme Court subsequently clarified its holding in Ayers and made it clear that the parameters within which the medical monitoring doctrine was to apply are very narrow and limited to toxic еxposure situations (Theer v Philip Carey Co., 133 NJ 610,
“Ayers indicates that medical-surveillance damages constitute a special compensatory remedy designed to address the unique harm entailed in an increased risk of future injury arising from the exposure to toxic chemicals. * * *
*127 “However, we note that such a cause of action applies only to persons who have been directly exposed to hazardous substances” {id. at 627, at 733 [emphasis in original]).
Thus, we disagree with the New Jersey Superior Court’s expansion in Green of the medical monitoring doctrine to claims involving a “latent defect” in a seat that is “susceptible” to collapsing “if’ the car is struck from behind with sufficient force, which in turn might lead to physical injury.
Public policy concerns, in our view, also dictate that we reject plaintiffs’ claims, for it would be manifestly unfair to require a manufacturer to become, in essence, an indemnifier for a loss that may never occur. Plaintiffs’ argument, basically, is that as an acсident becomes foreseeably possible, upon the occurrence of certain contingencies, due to a design aspect of a product, the manufacturer must retrofit the product or otherwise make the consumer whole. However, under such a schematic, as soon as it can be demonstrated, or alleged, that a better design exists, a suit can be brought to force the manufacturer to upgrade the product or pay an amount to every purchaser equal to the alteration cost. Such “no injury” or “peace of mind” actions would undoubtedly have a profound effect on the marketplace, as they would increase the cost of manufacturing, and therefore the price of everyday goods to compensate those consumers who claim to have a better design, or a fear certain produсts might fail. In Lee v General Motors Corp. (
“Not every unfortunate incident that occurs in life, not every discomfort, not every unsatisfactory commercial transaction, not every disagreement among people and/or corporations, gives rise to a cause of action * * * If Courts were to allow cases such as this to gо forward, the costs of doing business would be so burdensome and so expensive that suppliers, manufacturers, and most consumers would suffer greatly. The only persons that would benefit by permitting cases such as this to go forward would be the lawyers handling the case and perhaps the few consumers directly involved in the litigation.” {Id. at 175.)
This is not to say that plaintiffs, to the extent that they may have some legitimate concerns, are not without recourse. The
In sum, plaintiffs have not been involved in any accidents and have not suffered any personal injuries or property damage. Moreover, plaintiffs do not allege that any seat has failed, been retrofitted or repaired, nor have plaintiffs attempted to sell, or sold an automobile at a financial loss because оf the alleged defect. We find, therefore, that the motion court properly dismissed the first through sixth causes of action as the result of plaintiffs’ failure to plead any actual injury, and properly dismissed the seventh cause of action for civil conspiracy since no independent cause of action exists for such a claim (see, Small v Lorillard Tobacco Co.,
Accordingly, the order of the Supreme Court, New York County (Jane Solomon, J.), entered on or abоut May 30, 2000, which granted the motions of defendants Ford, General Motors and Saturn to dismiss the amended complaint for failure to state a cause of action, should be affirmed, without costs.
Tom, Saxe and Sullivan, JJ., concur.
Order, Supreme Court, New York County, entered on or about May 30, 2000, affirmed, without costs.
Notes
. DaimlerChrysler Corporation was a defendant at the time the motions to dismiss this action were filed, but all claims asserted against it were dismissed, with prejudice, pursuant to stipulation, рrior to the motion court’s ruling which is the subject of this appeal.
. For a detailed analysis of whether the elements of New York’s causes of action for strict products liability and breach of implied warranty are always “coextensive,” and whether the latter can be broader than the former, see Denny v Ford Motor Co. (
. The court in Briehl opined that “[c]ourts have been particularly vigilant in requiring allegations of injury or damages in products liability cases,” and went on to provide numerous examples of that proposition (id. at 627-628).