Goldman, P. J.
In this products liability cáse Special Term dismissed plaintiff’s causes of action for breach of warranty [290]*290or strict tort liability as a matter of law, upon the ground that no such action exists in favor of a nonuser. The court stated that “ we consider ourselves bound by the case of Berzon v. Don Allen Motors, Inc.” (23 A D 2d 530). We are asked to reconsider our prior holding in Berzon that no right of action exists in favor óf a nonuser of the product involved in the accident. We resolve that issue now by laying to rest a principle which we,believe outmoded and no longer adaptable to the rights of individuals in contemporary society. This re-examination of a question where justice demands it, as Chief Judge Desmond stated in Woods v. Lancet (303 N. Y. 349, 355), is our duty and courts “ act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice ”.
The facts are uncomplicated. A truck owned by Quipco, Inc. and operated by one Andrews was pulling a trailer in an easterly direction on North French Road in the Town of Amherst; N. Y. The truck was attached to the trailer by a pintle hook or coupler which had been sold to Quipco by defendant Ring Bros., Inc. Soon after crossing the intersection of North French and Hopkins Roads, the pintle hook parted, the trailer became detached from its towing vehicle, crossed onto the left, or wrong, side of the road, and collided with the oncoming car operated by Emilio Oiampichini, to whom the accident was fatal. The plaintiff Frieda Oiampichini, a passenger in the car, sustained severe injuries. She brought this action for her personal injuries and for the wrongful death of the decedent on the theory that not only was the accident caused by the negligence xof the operator of the trailer truck, but it also resulted because the defendant negligently manufactured the hook. This breach of the warranty that the hook was merchantable and fit for use as a trailer hitch, plaintiff contends, rendered the defendant strictly liable. Defendant moved pursuant to CPLR 3211 (subd. [a], par. 7) to dismiss those portions of the complaint sounding in breach of warranty and strict tort liability and the motion was granted.. A motion to reargue based upon the Third Department decision of Codling v. Paglia (38 A D 2d 154) was denied on the ground that Special Term was bound by our decison in Berzon v. Don Allen Motors (23 A D 2d 530, supra).
"What would have been a radical departure from the doctrine in Berzon nine years ago is today the next logical step in the expanding scope of warranty liability. It is only the “ distorted shadow ” of privity which now precludes nonusers from the warranty protection granted to users (2 Harper and James, Daw of Torts [1956], p. 1572, n. 6). The undermining of the [291]*291“citadel of privity” (see, Prosser, The Fall of the Citadel [Strict Liability to the Consumer], 50 Minn. L. Rev. 791) is almost complete in products liability law. This doctrine which precluded plaintiffs from recovery in an action for breach of implied warranty, absent privity between plaintiff and defendant, is fast losing its viability and properly so. The traditional view of limiting a seller’s liability based upon privity received expression in Chysky v. Drake Bros. Co. (235 N. Y. 468) and Turner v. Edison Stor. Battery Co. (248 N. Y. 73). The gradual hewing away of the foundation of privity' has been treated by text writers1 and fostered by judicial decisions2 for the last four or five decades.
Quite apart from other considerations, such as the application of statutes of limitation, it might be said that the Court of Appeals has in effect equated strict tort liability with strict liability in warranty or, in other words, has considered a breach of implied warranty involving a dangerous instrument as a tortious wrong separate and distinct from a breach of a sales contract (Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432). In Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340, 345) the court indicated that Goldberg did not establish a new action in tort but rather extended the concept of implied warranty by eliminating the requirement of priyity. The court stated (p. 345) that “ strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action A month later in Guarino v. Mine Safety Appliance Co. (25 N Y 2d 460, 464) the court reaffirmed its position that it did not believe that the theory of the action, whether it be negligence or breach of warranty, is significant where the doctrine of “danger invites rescue ” is applicable. The court commented ,(p. 464): “ A breach of warranty and an act of negligence are each clearly wrongful acts. Both terms are synonymous as regards fixation of liability, differing primarily in their requirements of proof ”. (See, also, Ibach v. Donaldson Serv., 38 A D 2d 39.)
[292]*292Text writers have also considered strict tort liability and strict warranty liability as synonymous (2 Frumer and Friedman, Products Liability, § 16 A [4]). Prosser favors imposing liability in tort as opposed to a theory of strict warranty liability based upon contract implications (Prosser,. The Fall of the Citadel, [Strict Liability to the Consumer], 50 Minn. L. Rev. 791, 802, supra). The doctrine of strict liability has received approval in the Restatement 2d, Torts (§ 402 A). This should not be surprising if we recall that the action upon a warranty originated as a tort action although it has generally been considered contractual (1 Williston, Sales [rev. ed.], §§ 195, 244a). Williston explains that the representation of fact which produced the bargain is a warranty and that an actual agreement to contract is not essential. He points out that the obligation of the seller is one imposed by law and that this fact has been lost sight of by some courts because assumpsit became so generally the remedy for the enforcement of a warranty.
We are not constrained to leave to legislative pronouncement the extension of warranty protection to nonusers. “ Our courts have never hesitated to alter the substantive law of the State when justice so required ” (Thomas v. Leary, 15 A D 2d 438, 442). The Uniform Commercial Code has left the door open to courts to extend the protection of warranty to greater numbers of plaintiffs, (Uniform Commercial Code, § 2-318, N. Y. Ann.). The Official Comment to section 2-313 of the Uniform Commercial Code states that “ Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not he confined either to sales contracts or to the direct parties to such a contract. * * * The provisions of Section 2-318 on third party beneficiaries expressly recognize this case law development within one particular area. Beyond that, the matter is left- to the case law with the intention that the policies of this Act may offer useful guidance in dealing with further cases as they arise ”.
Free access — add to your briefcase to read the full text and ask questions with AI
Goldman, P. J.
In this products liability cáse Special Term dismissed plaintiff’s causes of action for breach of warranty [290]*290or strict tort liability as a matter of law, upon the ground that no such action exists in favor of a nonuser. The court stated that “ we consider ourselves bound by the case of Berzon v. Don Allen Motors, Inc.” (23 A D 2d 530). We are asked to reconsider our prior holding in Berzon that no right of action exists in favor óf a nonuser of the product involved in the accident. We resolve that issue now by laying to rest a principle which we,believe outmoded and no longer adaptable to the rights of individuals in contemporary society. This re-examination of a question where justice demands it, as Chief Judge Desmond stated in Woods v. Lancet (303 N. Y. 349, 355), is our duty and courts “ act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice ”.
The facts are uncomplicated. A truck owned by Quipco, Inc. and operated by one Andrews was pulling a trailer in an easterly direction on North French Road in the Town of Amherst; N. Y. The truck was attached to the trailer by a pintle hook or coupler which had been sold to Quipco by defendant Ring Bros., Inc. Soon after crossing the intersection of North French and Hopkins Roads, the pintle hook parted, the trailer became detached from its towing vehicle, crossed onto the left, or wrong, side of the road, and collided with the oncoming car operated by Emilio Oiampichini, to whom the accident was fatal. The plaintiff Frieda Oiampichini, a passenger in the car, sustained severe injuries. She brought this action for her personal injuries and for the wrongful death of the decedent on the theory that not only was the accident caused by the negligence xof the operator of the trailer truck, but it also resulted because the defendant negligently manufactured the hook. This breach of the warranty that the hook was merchantable and fit for use as a trailer hitch, plaintiff contends, rendered the defendant strictly liable. Defendant moved pursuant to CPLR 3211 (subd. [a], par. 7) to dismiss those portions of the complaint sounding in breach of warranty and strict tort liability and the motion was granted.. A motion to reargue based upon the Third Department decision of Codling v. Paglia (38 A D 2d 154) was denied on the ground that Special Term was bound by our decison in Berzon v. Don Allen Motors (23 A D 2d 530, supra).
"What would have been a radical departure from the doctrine in Berzon nine years ago is today the next logical step in the expanding scope of warranty liability. It is only the “ distorted shadow ” of privity which now precludes nonusers from the warranty protection granted to users (2 Harper and James, Daw of Torts [1956], p. 1572, n. 6). The undermining of the [291]*291“citadel of privity” (see, Prosser, The Fall of the Citadel [Strict Liability to the Consumer], 50 Minn. L. Rev. 791) is almost complete in products liability law. This doctrine which precluded plaintiffs from recovery in an action for breach of implied warranty, absent privity between plaintiff and defendant, is fast losing its viability and properly so. The traditional view of limiting a seller’s liability based upon privity received expression in Chysky v. Drake Bros. Co. (235 N. Y. 468) and Turner v. Edison Stor. Battery Co. (248 N. Y. 73). The gradual hewing away of the foundation of privity' has been treated by text writers1 and fostered by judicial decisions2 for the last four or five decades.
Quite apart from other considerations, such as the application of statutes of limitation, it might be said that the Court of Appeals has in effect equated strict tort liability with strict liability in warranty or, in other words, has considered a breach of implied warranty involving a dangerous instrument as a tortious wrong separate and distinct from a breach of a sales contract (Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432). In Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340, 345) the court indicated that Goldberg did not establish a new action in tort but rather extended the concept of implied warranty by eliminating the requirement of priyity. The court stated (p. 345) that “ strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action A month later in Guarino v. Mine Safety Appliance Co. (25 N Y 2d 460, 464) the court reaffirmed its position that it did not believe that the theory of the action, whether it be negligence or breach of warranty, is significant where the doctrine of “danger invites rescue ” is applicable. The court commented ,(p. 464): “ A breach of warranty and an act of negligence are each clearly wrongful acts. Both terms are synonymous as regards fixation of liability, differing primarily in their requirements of proof ”. (See, also, Ibach v. Donaldson Serv., 38 A D 2d 39.)
[292]*292Text writers have also considered strict tort liability and strict warranty liability as synonymous (2 Frumer and Friedman, Products Liability, § 16 A [4]). Prosser favors imposing liability in tort as opposed to a theory of strict warranty liability based upon contract implications (Prosser,. The Fall of the Citadel, [Strict Liability to the Consumer], 50 Minn. L. Rev. 791, 802, supra). The doctrine of strict liability has received approval in the Restatement 2d, Torts (§ 402 A). This should not be surprising if we recall that the action upon a warranty originated as a tort action although it has generally been considered contractual (1 Williston, Sales [rev. ed.], §§ 195, 244a). Williston explains that the representation of fact which produced the bargain is a warranty and that an actual agreement to contract is not essential. He points out that the obligation of the seller is one imposed by law and that this fact has been lost sight of by some courts because assumpsit became so generally the remedy for the enforcement of a warranty.
We are not constrained to leave to legislative pronouncement the extension of warranty protection to nonusers. “ Our courts have never hesitated to alter the substantive law of the State when justice so required ” (Thomas v. Leary, 15 A D 2d 438, 442). The Uniform Commercial Code has left the door open to courts to extend the protection of warranty to greater numbers of plaintiffs, (Uniform Commercial Code, § 2-318, N. Y. Ann.). The Official Comment to section 2-313 of the Uniform Commercial Code states that “ Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not he confined either to sales contracts or to the direct parties to such a contract. * * * The provisions of Section 2-318 on third party beneficiaries expressly recognize this case law development within one particular area. Beyond that, the matter is left- to the case law with the intention that the policies of this Act may offer useful guidance in dealing with further cases as they arise ”.
The imposition of liability has been a gradual process usually achieved by judicial decisions through the creation of exceptions to the privity doctrine and culminating in a recognition of strict tort liability. The pattern in New York has been to eliminate the privity requirement (1) with respect to food and beverages (Greenberg v. Lorenz, 9 N Y 2d 195); (2) when dealing with inherently and imminently dangerous products [293]*293(Thomas v. Winchester, 6 N. Y. 397; MacPherson v. Buick Motor Co., 217 N. Y. 382); (3) in an action against a manufacturer for breach of express warranty (Randy Knitwear v. American Cyanamid Co., 11 N Y 2d 5); (4) in the case of implied warranty where the breach was not only considered a violation of the sales contract but also as a tortious wrong suable by a noncontracting party whose use was within the reasonable contemplation of the manufacturer (Rooney v. Healy Co., 20 N Y 2d 42; Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432); (5) in the case of an employee of the purchaser as a contemplated user (Thomas v. Leary, 15 A D 2d 438); (6) and finally in the case of nonusers, bystanders and strangers (Codling v. Paglia, 38 A D 2d 154; Singer v. Walker, 39 A D 2d 90; Cawley v. General Motors Corp., 67 Misc 2d 768).
Perhaps the issue is best presented and answered by the language in 2 Harper and James, Law of Torts (1956) (p. 1572, n. 6), where the authors question why bystanders and other third persons who happen to be in the path of harm should be excluded from recovery on a warranty theory. The writers state: “ Such injury is often a perfectly foreseeable risk of the maker’s enterprise, and the considerations for imposing such risks on the maker without regard to his fault do not stop with those who undertake to use the chattel. Such a restriction is only the distorted shadow of a vanishing privity which is itself a reflection of the habit of viewing the problem as a commercial one between traders, rather than as part of the accident problem.”
It is both reasonable and just to extend to bystanders the protection against a defective manufactured article. To restrict recovery to those who are users is unrealistic in view of the fact that bystanders have less opportunity to detect any defect than either purchasers or users. Our decision is one of policy but is mandated by both justice and common sense. We should not and do not hesitate to extend the ambit of implied warranty to include bystanders.
The order appealed from should be reversed and the motion to dismiss the causes of action for breach of warranty or strict tort liability should be denied.