44 A.D.2d 316 | N.Y. App. Div. | 1974
Lead Opinion
The question presented is whether the contrast Statute of Limitations (which commences running at the time of sale) or the tort Statute of Limitations (which commences at the time of injury) is to be. applied in this case. The determination is crucial to the infant plaintiff since, if the contract Statute of Limitations is applied, he would be deprived of the possibility of proceeding under the doctrine of strict products liability recently announced in Codling v. Paglia (32 N Y 2d 330) and amplified in Velez v. Craine & Clark Lbr. Corp. (33 N Y 2d 117). The new strict-products-liability doctrine permits recovery of damages for personal injuries suffered through the normal and intended use of a defective instrumentality or, as Judge Jones concisely stated it in the first paragraph of his opinion in Codling (p. 335), “ we hold that today the manufacturer of a defective product may be held liable to an innocent
As recently as 1969, by a 4 to 3 vote, the Court of Appeals in Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340) decided that the contract Statute of Limitations applies to a breaehof-warranty cause of action brought by a remote user of an allegedly defective product seeking recovery of damages for personal injuries. By reason of the Codling and Veles decisions, we hold that Mendel is not applicable to strict-products-liability cases and that the three-year limitation period for personal injury claims (CPLR 214, subd. 5) and themormal tort rule that the claim accrues at the time of the injury apply to the plaintiffs’ causes of action which seek recovery on the strict-products-liability theory.
THE FACTS
The infant plaintiff, Alberto Rivera, Jr., celebrated his eighth birthday on October 2, 1967. On that day, he accompanied his aunt while she .did her laundry at the defendant Berkeley Super Wash, Inc. (Berkeley) self-service laundromat in Brooklyn. After the laundry was washed, it was placed by the infant’s aunt, still wet, in a centrifugal laundry extractor manufactured by the defendant-appellant Bock Laundry Machine Company (Bock), of Toledo, Ohio, and sold and delivered by it sometime in 1959. The function of such a machine is to extract excess moisture from laundry after washing, thereby reducing the necessary drying time. The aunt started the extractor in operation and left to get change while the infant plaintiff remained behind. The lid of the extractor was supposedly incapable of opening during the machine’s operating cycle.
On this occasion, however, and due to an alleged defect, the lid popped open while the machine was still in operation, with the interior compartment spinning at a high rate of speed.
The plaintiffs — the infant and his parents — commenced this litigation in 1967 (some eight years after the sale of the extractor
The plaintiffs’ complaint was amended in March, 1973 by the addition ¡of two causes of action on behalf of the infant and his parents, ¡respectively, alleging (breaches of the implied warranties of merchantability and fitness for use. Bock moved for summary judgment dismssing .the breach-of-warranty causes of action, asserting that they were time barred by virtue of the expiration of the six-year ¡Statute of Limitations (former Civ. Prac. Act, § 48; CPLR 213). The ¡motion was denied, without prejudice to renewal following an examination ¡before trial.
Upon completion of the discovery proceedings, the plaintiffs, in September, 1973, moved for leave to serve a further amended complaint setting forth yet two additional causes of action (as the fifth and sixth) on behalf of the infant and his parents. These additional causes of actions are grounded on Bock’s strict liability in tort and are based on the recent decision of the Court of Appeals in Codling v. Paglia (32 N Y 2d 330, supra). Bock then (as a cross motion) renewed its motion for summary judgment as to the third and fourth causes of action. It is from the granting of leave to the plaintiffs to serve the further amended complaint and the concomitant denial of Bock’s renewed motion that Bock presently appeals.
A DISCUSSION OF THE LAW
The rapid ¡growth and development of the law of products liability has been extensively noted.
Codling v. Paglia (32 N Y 2d 330, supra) represents the culmination of the evolution in New York of the doctrine of strict ' products liability, a doctrine which earlier found acceptance in a number of other jurisdictions.
Of course, the fact that New York now recognizes a strictproduets-liability cause of action does not mean that breach of warranty under the Uniform Commercial Code no longer exists. The breach-of-warranty causes of action under the code are primarily related to the sales contract (see, e.g., Uniform Commercial Code, § 2-725) and are'.separate from a strict-products-liability cause of action, which is wedded to- the concept of a tortious wrong. Actions for breach of warranty under the code are subject to all the limitations and requirements imposed by the code. Thus the code, enacted with the purpose, among others, of codifying and expanding the remedies available to parties to sales contracts, does not, and never attempted to, provide an exclusive remedy in the field of products liability. (See dissent of Judge Breitel [now Chief Judge] in Mendel v. Pittsburgh Plate Glass Co., 25 N Y 2d 340, 351-352, supra.) The result of the legal development of a strict-products-liability cause of action is that redress for personal injuries caused by defective products may now be sought in New York under several different theories— (1) pure common-law negligence, (2) breach of warranty and (3) strict products'liability—depending on the particular circumstances of the individual case.
Since there is now a cause of action in strict products liability, we are here squarely confronted with the question posed at
The majority opinion in Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340, supra), as noted, held that breach-of-warranty causes of action, since they sound in contract, are governed by the six-year contract Statute of Limitations.
Eecognizing that as an intermediate appellate court -we are bound to follow an applicable decision of the Court of Appeals, unless subsequent events establish that the raison d’etre for the decision no longer exists, we have come to the conclusion that .that is the fact here and that, on the operative facts in this record, Mendel is no longer viable.
Blessington involved .a suit to recover damages for pain and suffering brought by the personal representative of a deceased infant against, among others, the retailer and the manufacturer of an inflammable cowboy suit which, when it came in contact with a flame, ignited and caused fatal burns. There, contrary to the facts in our case, the plaintiff’s causes of action in negligence against the defendants were time-barred by the then-applicable three-year 'negligence Statute of Limitations (former Civ. Prac. Act, § 49, subd. 6). Hence, in order to afford the plaintiff a non-barred remedy, the cause of action directed
Significant differences between the Blessington and Mendel situations are apparent. First, Blessington was decided well before the ‘ ‘ citadel of privity ’ ’ had even begun to be eroded in New York in breach-of-warranty suits. The breaeh-of-warranty cause of action in Blessington was brought against an immediate vendor, not a remote supplier. Thus, the privity requirement was satisfied and the contract .Statute of Limitations seemed to be the 'logical and reasonable choice as the proper limitation period. On the other hand, at the time Mendel was decided, the once-formidable privity requirement had been riddled with exceptions (see, e.g., Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432, supra). Thus, the Mendel majority’s choice of the contract limitation period was less than compelling. Secondly, in Blessington the alternative to application of the six-year contract Statute of Limitations was to apply the Statute of Limitations for actions to recover damages for a personal injury resulting from negligence, which would have outlawed the plaintiff’s cause of action.
Further, the Mendel majority relied on the language of sections 2-725 and 2-318 of the Uniform Commercial Code (the provisions of which were not in effect at the time of the Mendel sale) for its conclusion that the contract .Statute of Limitations applied. However, the Official Comment of the National Conference of Commissioners on Uniform .State Laws and the American Law Institute to the latter section indicates that the section does not provide the exclusive remedy in strict-produetsliability cases. 'Section 2-725, by its terms, is directed toward the genuine breach of contract situation involving buyer and seller, subdivision (1) thereof explicitly referring to actions “for breach of any contract for sale”.
It has been suggested -both that the plaintiff’s burden of proof in strict-produ-cts-liability causes of action is “ heavy rather than light”
Application of the contract 'Statute of Limitations to the striet-products-liability causes of action here, claims grounded in the concept of a tortious wrong, would only serve to duplicate the unfair Mendel result. The infant plaintiff Rivera was born in 1959, the same year in which the sale of the extractor took place. Bight years later this machine was to cause the loss of his arm. To apply the contract Statute of Limitations, with its concomitant rule that the cause of action accrued at the time of sale, would mean that the limitation period expired two years prior to the accident.
Since the Court of Appeals has seen fit to establish a new cause of action for strict products liability, independent of warranty, we see no valid reason for extending the Mendel rule to the striet-products-liability concept. Bather we hold that the three-year Statute of Limitations applicable to actions to recover damages for personal injuries, with accrual of the action at the time of injury, is applicable as well to an action in strict products liability. This approach has been adopted by at least one court at nisi prius and is followed in many other jurisdictions (see Wilsey v. Mulkey Co., 56 Misc 2d 480; Rosenau v. City of New Brunswick, 51 N. J. 130 [1968]; Nelson v. Volkswagen of Amer., 315 F. Supp. 1120,1122-1123; Abate v. Barkers of Wallingford, 27 Conn. .Sup. 46 [1967]; Williams v. Brown Mfg. Go., 45 Ill. 2d 418, 431-433 [1970]; Holifield v. Setco Inds., 42 Wis. 2d 750 [1969]; Arrow Transp. Co. v. Fruehauf Corp., 289 F. Supp. 170 [Dist. Ct. Ore., 1968]; Tucker v. Capitol Mach., 307 F. Supp. 291 [M. D. Pa., 1969]; Hornung v. Richardson Merrill, Inc., 317 F. Supp. 183 [Dist. Ct. Mont., 1970]; Heavner v. Uniroyal, Inc., 63 N. J. 130 [1973]).
The summons and complaint in the instant case were served in 1967, and in its original form the complaint alleged only causes of action in pure negligence. These claims are concededly timely and are not attacked. The third and fourth causes of action, for (breach of warranty, were not asserted for the first time until 'March, 1973, and they should have been dismissed, since they would have been time-barred even had they been asserted in the original complaint (former Civ. Prac. Act, § 48; CPLR 213; Uniform Commercial Code, § 2-725; Mendel v. Pittsburgh Plate Glass Co., (25 N Y 2d 340, supra, which is still the law as to warranty causes of action).
The infant plaintiff, not having a claim for damages until 1967 (when he was injured) and thus not until then “ entitled to commence an action ” (CPLR 208), cannot invoke the benefit of the tolling provisions of section 60 of the former Civil Practice Act and CPLB 208 as to the third cause of action. The result thus is that the infant’s breach of warranty cause of action is time-barred. Even were the tolling provisions of CPLR. 208 available .to the infant as to his (third) cause of action, his adult parents would not obtain the benefits of such a toll as to their derivative (fourth) cause of action based on breach of warranty (Francies v. County of Westchester, 3 A D 2d 850; Constantinides v. Manhattan Tr. Co., 264 App. Div. 147, 151; Pitrelli v. Cohen, 257 App. Div. 845).
However* in view of our conclusion that a strict-pr oductsliability cause of action is founded on a tortious wrong and thus is governed by accrual and limitation rules .applicable to claims sounding in tort, the fifth cause of action, asserted on behalf of the infant plaintiff, is timely since it accrued in 1967 (when he was injured) and the CPLB 208 toll can be invoked. The toll is not applicable to the derivative (sixth) cause of action and thus the plaintiffs’ motion, insofar as it sought leave to assert that cause of action, should have been denied.
The order appealed from should therefore be modified in. accordance with this opinion, on the law, and, as so modified, affirmed, with $20 costs and disbursements to the plaintiffs.
. Although there is no indication in the present record as to why the extractor malfunctioned in this manner, we note the discussion of a similar occurrence described in Westerberg v. School List. No. 792 of Todd County (276 Minn. 1). (See, also, record on appeal in Lewin v. Bock Laundry Mach. Co., 38 A D 2d 791.)
. See, e.g., Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791; The Expanding Scope of Enterprise Liability, 69 Col. L. Rev. 1084 (1969); Products Liability: Strict Liability in Tort, 13 ALR 3d 1057; Strict Products Liability and the Bystander, 64 Col. L. Rev. 916 (1964).
. See, e.g., Suvada v. White Motor Co. (32 Ill. 2d 612 [1965]); Greenman, v. Yuba Power Prods. (59 Cal. 2d 57 [1963]); Nalbandian v. Byron Jackson Pumps (97 Ariz. 280 concurring opinion [1965]); Garthwait v. Burgio (153 Conn. 284 [1965]); Cornette v. Searjeant Metal Prods. (147 Ind. App. 46); Hawkeye-Security Ins. Co. v. Ford Motor Co. (174 N. W. 2d 672 [Iowa, 1970]); Dealers Transp. Co. v. Battery Distr. Co. (402 S. W. 2d 441 [Ky. App., 1965]); Meche v. Farmers Drier & Stor. Co. (193 So. 2d 807 [La. App. 1967]); cf. Cova v. Harley Davidson Motor Co. (26 Mich. App. 602 [1970]); State Stove Mfg. Co. v. Hodges (189 So. 2d 113 [Miss., 1966]); Williams v. Ford Motor Co. (411 S. W. 2d 443 [Mo. App. 1966]); Santor v. A & M Karagheusian (44 N. J. 52 [1965]); Buttrick v. Arthur Lessard & Sons, Inc. (110 N. H. 36); Lonzrick v. Republic Steel Corp. (1 Ohio App. 2d 374, affid. 6 Ohio St. 2d 227); Cochran v. Brooke (243 Ore. 89); Webb v. Zern (422 Pa. 424); Ford Motor Co. v. Lonon (217 Tenn. 400 [1966]); Shamrock Fuel & Oil Sales Co. v. Tunks (416 S. W. 2d 779 [Tex.]); Dippel v. Sciano (37 Wis, 2d 443 [1967]).
. We note in .passing that this court spoke of a “ warranty theory ” in a post-Codling ease in which we ruled, via a common-sense extension of the rule of Goldberg v. Kollsman Instrument Corp. (12 N Y 2d 432, supra), that an injured plaintiff (purchaser and user), could assert a claim for redress against the manufacturer of an allegedly defective component part of the plaintiff’s automobile (Clark v. Bendix Corp., 42 A D 2d 727 [1973]).
. For a discussion of the question of the interrelationship of the strict products liability and the implied warranty in the absence of privity theories of recovery, see, generally, 2 Frumer and Friedman, Products Liability, § 16A, subd. [4] (1973); Rosenau v. City of New Brunswick (51 N. J. 130, 143 [1968] ; Buttrick v. Arthur Lessard & Sons, Inc., 110 N. H. 36, 37-39; see, also, International Union of Operating Engineers Local 57 v. Chrysler Motors Corp. (106 R. I. 248); Jones v. Boggs & Buhl (355 Pa. 242); 2 Restatement 2d, Torts, § 402 A, comment m.
. The four-year limitation period set forth in section 2-725 of the Uniform Commercial Code for actions for “ breach of any contract for sale ” is not applicable to the instant case, since it only has prospective application from September 27, 1964 (Uniform Commercial Code, § 2-725, subd. [4]).
. The Mendel decision has been severely criticized by commentators and we believe justifiably so. Even an incomplete compilation of such critical commentary is impressive. See, e.g., Symposium on Mendel v. Pittsburgh Plate Glass Co. (six articles), 45 St. John’s L. Rev. 63, 71, 76, 86, 96, 104 (1970); Annual Survey of New York Law, Civil Practice, McLaughlin, 22 Syracuse L. Rev. 55, 61 (1970); 39 Fordham L. Rev. 152,156-160 (1970); Nelson v. Volkswagen of Amer., 315 F. Supp. 1120-1122 [D. C. N. H., 1970]; O’Keefe v. Boeing Co., 335 F. Supp. 1104,1114-1115 [S. D. N. Y., 1971]. We have found no authoritative support for Mendel.
. Subdivision 6 of section 49 of the former Civil Practice Act provided as follows:
“ § 49. Actions to be commenced within three years. The following actions must be commenced within three years after the cause of action has accrued: * ** 6. An action to recover damages for an injury to property or a personal injury, resulting from negligence.”
. See Rosenau v. City of New Brunswick (51 N. J. 130, 143, supra); 45 St. John’s L. Rev. 90-91).
. Mendel v. Pittsburg Plate Glass Co. (25 N Y 2d 340, 351 [dissent by Judge Bbeitel (now Chief Judge)]).
. 45 St. John’s L. Rev., 102.
Dissenting Opinion
In the opening sentence of Codling v. Paglia (32 N Y 2d 330, 335) the Court of Appeals stated: “We hold that today the manufacturer of a defective prdduct may be held liable to an innocent bystander, without proof of negligence, for damages sustained in consequence of the defect. ’ ’ This, and nothing more, appears to be the holding
I read Codling as having removed the remaining “ filiar ” from the beleaguered citadel of privity, thus completing the trend in New York law toward, extending to “ any ” person injured by a defective product the full benefits of the express and implied warranty protection contained in the Uniform Commercial Code, provided the test above referred to is met (cf. MacPherson v. Buick Motor Co., 217 N. Y. 382; Turner v. Edison Stor. Battery Co., 248 N. Y. 73; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Randy Knitwear v. American Cyanamid Co., 11 N Y 2d 5; Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432).
Unlike the majority, I do not believe that the Codling holding requires us to infer that the viability of Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340) has been diminished. I am not unmindful of the language contained in Veles v. Craine & Clark Lbr. Corp. (33 N Y 2d 117, 124-125), wherein the court stated that “ strict products liability sounds in tort rather than in contract.” There is nothing novel in this pronouncement.
In Goldberg (supra p. 436) the court stated: “A breach of warranty, it is now clear, is not only a violation of the sales contract out of which the warranty arises but is a tortious wrong suable by a noncontracting party whose use of1 the warranted article is within the reasonable contemplation. of the vendor or manufacturer” (emphasis supplied). Yet when the above-quoted language was advanced to the court in Mendel for the proposition that “ Goldberg v. Kollsman Instrument Corf. * * * created in favor of third-party strangers to the contract, a cause of action in tort and not in warranty ” (p. 343, last two emphases supplied), the Mendel court rejected the proposition and held: “ While there is language in the majority opinion in Goldberg approving of the phrase ‘ strict tort liability ’, it is clear that Goldberg stands for the proposition that notwithstanding the absence of privity, the cause of action which exists in favor of third-party strangers to the contract is an action for breach of implied warranty ” (pp. 343-344).
Indeed, the court in Mendel stated that “ strict liability in tort and implied warranty in the absence of privity are merely
The terminology employed in the area of products liability, i.e., “ strict liability in tort” and “ strict products liability”, has resulted in some confusion. Language utilized in the Codling ease must therefore be interpreted against the background of cases which preceded it.
In Codling the court did not establish a new tort liability meant to replace the statutorily established Uniform 'Commercial Code action for ¡breach of warranty. I disagree with the majority’s view that the code action can exist side by side, as it were, with the court “ enacted ” action for the same relief sounding strictly in tort and governed by a different Statute of Limitations.
The effect of the majority’s holding is to judicially “ repeal ” those provisions of the Uniform Commercial Code imposing a four-year Statute of Limitations, from the date of sale, on actions where the plaintiff seeks damages for personal injuries based upon breach of warranty. I find the comments of the court in Mendel with respect to sections 2-7-25 and 2-318 of the Uniform 'Commerical Code particularly pertinent and determinative.
I cannot agree with the view of my brethren that an action for breach of warranty with its concomitant contract period of limitation is 1 ‘ clearly unjust ’ ’, in that it is grounded on a wholly arbitrary basis of a period of time' which bears no relation to the time of injury.
The fact that the four-year Statute of Limitations was made applicable to breach-of-warranty actions represents a legislative determination that at some time a manufacturer’s contractual obligations should be put to rest. Thus, section 2-725 of the Uniform Commercial Code provides, inter alia, a four-year period measured from the time of sale for the commencement of an action based upon breach of warranty “ regardless of the aggrieved party’s lack of knowledge of the breach ” (subd. [2]). 'CPLR 201 provides, inter alia, that ‘ ‘ no court shall extend the time limited by law for the commencement of an action,” In my opinion, the Legislature has clearly spoken in this -area. If so basic a tenet is to be changed, it should be done by the Legislature and not by the courts.
The availability of an action in negligence leaves the plaintiff with a viable remedy where the warranty period of limitation
In addition, I disagree with the reading given by the majority to the Official fComment .to section 2-318 of the Uniform Commercial Code. There is nothing in that comment which indicates that the code does not provide the exclusive remedy in strict liability cases. ■
Accordingly, as above indicated, the branch of the plaintiffs ’ motion which was to amend the complaint to assert a cause of action in strict products liability on behalf of the infant plaintiff should have been denied. The order under review should be reversed, the plaintiffs’ motion denied and the cross motion of defendant Bock Laundry Machine Company granted.
Concurrence Opinion
concur with ¡Shapiro, Acting P. J.; Cohalan .and Benjamin, JJ., dissent and vote to reverse the order, to deny plaintiffs’ motion and to grant the cross motion of defendant Bock Laundry Machine Company, with separate opinions.
Order modified, on the law, (1) iby inserting in the first decretal paragraph thereof, immediately after the passage that plaintiffs’ motion for leave to add two causes of action to their amended complaint, as the fifth and sixth causes, is granted, the following: “ as to the proposed fifth cause of action and • denied as to the proposed sixth cause of action”; and (2) by striking from the third decretal paragraph thereof, which denied appellant’s cross motion, the word “ denied ” and substituting therefor the word “ granted ”. As so modified, order affirmed, with $20 costs and disbursements to the plaintiffs.
Dissenting Opinion
I dissent. On the authority of Mendel v. Pittsburgh Plate Glass Co. (25 N Y ,2d 340), the order under review should be reversed, the plaintiffs’ motion denied and the cross motion of defendant Bock Laundry Machine Company granted.
