128 A.D.2d 15 | N.Y. App. Div. | 1987
OPINION OF THE COURT
In 1973, plaintiff Edward Perazone (hereinafter plaintiff) purchased a garden tractor designed and manufactured by defendant Roper Corporation and marketed by defendant Sears, Roebuck and Company. In October 1978, plaintiff employed defendant Hubbell Brothers, Inc. to service the tractor. At that time, Hubbell replaced the original gasoline tank cap with a standard replacement cap. On July 21, 1979, while operating the tractor, plaintiff became aware of a hissing sound coming from the top of the cap. Soon afterward, the cap blew off the tank causing gasoline to spill out and ignite. Plaintiff suffered second- and third-degree burns over approximately 40% of his body.
Defendants’ primary contention is that Supreme Court erred in allowing plaintiff to submit evidence of postmanufacture design changes. Specifically, they challenge the introduction of the owner’s manual for a later model tractor produced by defendants, certain "change notices” concerning engineering changes on the tractor and the reading into evidence of Roper’s answer to an interrogatory concerning post-1973 design changes.
It has long been a principle of the law of evidence that proof of postaccident repairs or modifications by a defendant is not admissible as evidence of negligence (see, Richardson, Evidence §§ 168, 221, at 136, 197 [Prince 10th ed]; Fisch, New York Evidence § 798, at 468 [2d ed]). The rule is based in logic as well as public policy. Evidence of subsequent remedial measures does not logically prove negligence and is highly prejudicial to a defendant. Also, parties should not be discouraged from making repairs and lessening the chance of injury to others.
This principle has come up for review in connection with its applicability to the developing area of strict products liability. A strict products liability cause of action may be premised on a defect in the manufacturing process, a defect in the design
Since evidence of postmanufacture design change is extremely prejudicial to a defendant, the action must be scrutinized to ascertain which theory or theories of strict products liability the plaintiff is relying on. Where a plaintiff attempts to prove a manufacturing defect and also offers proof of design defect and/or failure to warn or instruct, evidence of postmanufacture design change would be admissible on the issue of manufacturing defect and the defendant could request a jury charge limiting the consideration of such evidence to that issue (see, Brandon v Caterpillar Tractor Corp., 125 AD2d 625; Richardson, Evidence § 168, at 137 [Prince 10th ed]). However, a plaintiff cannot be permitted to make a perfunctory allegation of manufacturing defect, in a case where he is proceeding primarily on theories of negligence or strict products liability based on design defect or failure to adequately warn, and thereby circumvent the general rule that evidence of postmanufacture design changes is not admissible in these latter causes of action.
In the instant case, plaintiff claims that he was proceed
Next, defendants contend that Supreme Court erred in dismissing the strict products liability cause of action against Hubbell. This cause of action was premised on the sale by Hubbell to plaintiff of the replacement gasoline tank cap. Initially, we note that the judgment appealed from contains only one decretal paragraph which adjudicates defendants’ liability to plaintiff but does not speak to the dismissal of the causes of action as against Hubbell. However, since such dismissal is referred to in the recitals in the judgment and
While a retailer may be held strictly liable for its sale of a defective product which it did not manufacture (Sukljian v Ross & Son Co., 69 NY2d 89, 95; Mead v Warner Pruyn Div., 57 AD2d 340), such liability will not be imposed on the occasional seller whose distribution of a product is incidental to its regular business (Sukljian v Ross & Son Co., supra; Gobhai v KLM Royal Dutch Airlines, 85 AD2d 566, 567, affd on opn below 57 NY2d 839). Hubbell claims that it was in the business of repairing machinery and that its transaction with plaintiff was in the nature of "service” rather than "sale”. This argument confuses the difference between a breach of warranty cause of action and a strict products liability cause of action. The "sales/service” distinction relied on by Hubbell was developed in connection with breach of warranty since UCC article 2 deals with a sale of goods (see, Milau Assocs. v North Ave. Dev. Corp., 42 NY2d 482, 485; County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 114 AD2d 728, 729, appeal dismissed 67 NY2d 757). Where one sells goods within the meaning of UCC article 2, certain warranties are made to the buyer. The focus of a breach of warranty cause of action, thus, is on the transaction between the seller and the particular buyer involved. If service dominated the transaction and the transfer of personal property was merely incidental, a "sale” did not take place and no UCC article 2 warranties were made.
A strict products liability cause of action, on the other hand, had been extended to retailers for policy reasons. "Where products are sold in the normal course of business, sellers, by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation; additionally, by marketing the products as a regular part of their business such sellers may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods” (Sukljian v Ross & Son Co., supra, at 95). The same policy considerations do not attend where the sale is by a party who is not engaged in the sale of the product in issue as a regular part of its business. Thus, while the focus of a breach of warranty cause of action is on the transaction between the seller and the particular
In the instant case, the transaction between Hubbell and plaintiff may well have been primarily service oriented, thus negating a breach of warranty action. However, the cause of action brought to trial by plaintiff was strict products liability and it is clear from the record that Hubbell was in the business of retail sale of hardware, lumber and lawnmowers as well as lawnmower parts. A consumer could have purchased the gasoline tank cap involved herein without having repairs on a lawnmower performed. This case is unlike Gobhai (supra), where the provision of slippers to passengers was not a regular part of the business of an airline, or Sukljian (supra), where the occasional sale of a surplus secondhand machine was not a regular part of the business of General Electric Company.
In our view, the record demonstrates that the sale of the gasoline tank cap was part of the regular course of Hubbell’s business, such that it could be held liable for a defect in the cap. However, it is clear that insufficient proof of a defect in the cap was offered to warrant submission of the cause of action to the jury. The only semblance of such proof was the testimony of defendants’ expert witness that the cap was not sealing as well as it should have. However, this testimony had no factual support and was part of the witness’s highly speculative recital of his theory of how the accident occurred. Such testimony was directly contradicted by other evidence in the record.
Defendants also contend that Supreme Court erred in a number of respects in its charge to the jury. To the extent that such allegations of error affect the jury’s finding of no negligence on the part of Hubbell, we have reviewed them and find them to be without merit. So much of the judgment as dismissed the complaint and cross claim against Hubbell is affirmed.
Since we have held that a new trial is warranted, it is unnecessary to address defendants’ remaining contentions. The matter is remitted to Supreme Court for a new trial on plaintiff’s causes of action against defendants alleging negligence and strict products liability based on design defect, as well as his wife’s derivative causes of actions.
Kane, Main, Casey and Levine, JJ., concur.
Such evidence is also admissible where a manufacturer disputes a plaintiff’s proof of the feasibility of a design alternative or to establish the manufacturer’s failure to warn of a known risk or defect (Haran v Union Carbide Corp., 68 NY2d 710; Cover v Cohen, 61 NY2d 261), or in any situation where the evidence is offered not as proof of negligence or defective design but as proof of some other relevant fact, such as control (see, Richardson, Evidence § 168, at 137 [Prince 10th ed]).