DaBenigno v. Sunbeam Corp.

Appellate Division of the Supreme Court of New York

DaBenigno v. Sunbeam Corp.

216 A.D.2d 248, 628 N.Y.S.2d 636, 1995 N.Y. App. Div. LEXIS 7118

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 29, 1995

StatusPublished

Cited by4 cases

This text of 216 A.D.2d 248 (DaBenigno v. Sunbeam Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DaBenigno v. Sunbeam Corp., 216 A.D.2d 248, 628 N.Y.S.2d 636, 1995 N.Y. App. Div. LEXIS 7118 (N.Y. Ct. App. 1995).

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Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 16, 1994, which, inter alia, granted defendants’ respective motions for summary judgment dismissing the complaint, unanimously reversed, to the extent appealed from, as limited by the parties’ briefs, on the law, to reinstate the [249]*249negligence claim against defendants Sunbeam and Pergament, based upon a theory of failure to warn, without costs.

Defendants Sunbeam’s and Pergament’s affidavits in support of their motions for summary judgment were insufficient to prove, as a matter of law, that this manufacturer and retailer had each discharged its independent duty to exercise reasonable care to inform a product user of the dangers attendant to this propane gas grill (see, Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55, 64-65).

Although there is no duty on the part of a manufacturer or retailer to warn a customer about obvious hazards, here, knowledge of the propensity of propane, a gas heavier than air, to accumulate from ground level upward in a partially screened area cannot be assumed. This hazard was not manifest, and the reasonableness of the warnings, if any, provided by these defendants, is an issue of fact to be submitted to a jury.

We have considered and rejected the parties’ additional claims. Concur—Rosenberger, J. P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.

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Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 16, 1994, which, inter alia, granted defendants’ respective motions for summary judgment dismissing the complaint, unanimously reversed, to the extent appealed from, as limited by the parties’ briefs, on the law, to reinstate the [249]*249negligence claim against defendants Sunbeam and Pergament, based upon a theory of failure to warn, without costs.

Defendants Sunbeam’s and Pergament’s affidavits in support of their motions for summary judgment were insufficient to prove, as a matter of law, that this manufacturer and retailer had each discharged its independent duty to exercise reasonable care to inform a product user of the dangers attendant to this propane gas grill (see, Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55, 64-65).

Although there is no duty on the part of a manufacturer or retailer to warn a customer about obvious hazards, here, knowledge of the propensity of propane, a gas heavier than air, to accumulate from ground level upward in a partially screened area cannot be assumed. This hazard was not manifest, and the reasonableness of the warnings, if any, provided by these defendants, is an issue of fact to be submitted to a jury.

We have considered and rejected the parties’ additional claims. Concur—Rosenberger, J. P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.

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Bluebook (online)

216 A.D.2d 248, 628 N.Y.S.2d 636, 1995 N.Y. App. Div. LEXIS 7118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dabenigno-v-sunbeam-corp-nyappdiv-1995.

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