Fahey v. A.O. Smith Corp

77 A.D.3d 612, 908 N.Y.S.2d 719
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 5, 2010
StatusPublished
Cited by25 cases

This text of 77 A.D.3d 612 (Fahey v. A.O. Smith 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
Fahey v. A.O. Smith Corp, 77 A.D.3d 612, 908 N.Y.S.2d 719 (N.Y. Ct. App. 2010).

Opinion

In three related actions to recover damages for personal injuries and wrongful death, etc., (1) the plaintiffs in action No. [613]*6131 appeal, as limited, by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), entered November 25, 2008, as granted that branch of the motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing the complaint in action No. 1 insofar as asserted against that defendant, and the defendants Randall Gordon, also known as Randy Gordon, and Robin Gordon separately appeal, as limited by their brief, from so much of the same order as granted that branch of the motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing all cross claims in action No. 1 insofar as asserted against that defendant, (2) the plaintiffs in action No. 2 appeal, as limited by their brief, from so much of an order of the same court entered November 26, 2008, as granted that branch of the motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing the complaint in action No. 2 insofar as asserted against that defendant, and the defendants Long Island General Supply Co., Inc., Alec Gordon, Pearl Gordon, Randall Gordon, also known as Randy Gordon, and Robin Gordon separately appeal, as limited by their brief, from so much of the same order as granted that branch of the motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing all cross claims in action No. 2 insofar as asserted against that defendant, and (3) the plaintiffs in action No. 3 appeal, as limited by their brief, from so much of an order of the same court, also entered November 25, 2006, as granted that branch of the motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing the complaint in action No. 3 insofar as asserted against that defendant, and the defendants Long Island General Supply Co., Inc., Alec Gordon, Pearl Gordon, Randall Gordon, also known as Randy Gordon, and Robin Gordon separately appeal, as limited by their brief, from so much of the same order as granted that branch of the motion of the defendant A.O. Smith Corporation which was for summary judgment dismissing all cross claims in action No. 3 insofar as asserted against that defendant.

Ordered that the order entered in action No. 1 is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendant A.O. Smith Corporation which were for summary judgment dismissing all causes of action and cross claims insofar as asserted against it in that action except those claims asserted pursuant to General Municipal Law § 205-a insofar as asserted against it, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed; and it is further,

[614]*614Ordered that the order entered in action No. 2 is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendant A.O. Smith Corporation which were for summary judgment dismissing all causes of action and cross claims insofar as asserted against it in that action except those claims asserted pursuant to General Municipal Law § 205-a insofar as asserted against it, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed; and it is further,

Ordered that the order entered in action No. 3 is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendant A.O. Smith Corporation which were for summary judgment dismissing all causes of action and cross claims insofar as asserted against it in that action except those claims asserted pursuant to General Municipal Law § 205-a insofar as asserted against it, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed; and it is further,

Ordered that one bill of costs is awarded to the appellants, appearing separately and filing separate briefs.

These three related actions arise from a fire and explosion in a hardware store in Astoria, Queens, on June 17, 2001. The plaintiffs are firefighters who were injured in the explosion, their spouses, and the administrators of the estates of firefighters who perished in the explosion. The defendants include the owners of the hardware store (hereinafter the Gordon defendants) and A.O. Smith Corporation (hereinafter A.O. Smith), the manufacturer of a hot water heater. The fire allegedly started when a person not a party to these actions accidentally spilled a container of gasoline outside the store, the gasoline flowed under a door into the basement, and the vapors were allegedly ignited by the pilot light in the hot water heater. Several minutes later, after the firefighters had arrived, an explosion occurred, killing three firefighters and injuring several others.

As against A.O. Smith, the plaintiffs and the Gordon defendants assert a variety of theories of liability, including negligence, breach of implied and express warranty, and strict products liability, premised upon their allegation that the defective design of the hot water heater and its pilot light caused the gasoline vapors to ignite. They also assert causes of action pursuant to General Municipal Law § 205-a premised upon A.O. Smith’s alleged violation of the implied warranty of merchantability imposed by UCC 2-314. A.O. Smith moved for summary judgment dismissing the complaints and all cross claims insofar as asserted against it. In the three orders under review, the [615]*615Supreme Court granted A.O. Smith’s motions, finding that even if the pilot light of the water heater ignited the gas vapors, the alleged design defect was not a proximate cause of the firefighters’ injuries due to the intervening negligence of the Gordon defendants which broke the causal nexus. Further, with respect to the causes of action and cross claims asserted pursuant to General Municipal Law § 205-a, the Supreme Court held that a violation of UCC 2-314 is not a proper predicate to support those claims. We determine that the Supreme Court properly dismissed the causes of action and cross claims asserted pursuant to General Municipal Law § 205-a insofar as asserted against A.O. Smith, but that the remaining causes of action and cross claims should not have been dismissed, and we modify the orders accordingly.

Initially, a triable issue of fact was raised with respect to the existence of a design defect in the water heater. In support of its motion, A.O. Smith submitted evidence that the water heater complied with industry standards and carried adequate warnings of the ignition hazard from flammable vapors. In opposition, the plaintiffs and the Gordon defendants raised a triable issue of fact as to the existence of a design defect by submitting evidence that the water heater was not reasonably safe and that alternative, safer designs were available at the time of its manufacture, such as a direct vent system, or a design which used a vertical barrier or an 18-inch stand (see Sugrim v Ryobi Tech., Inc., 73 AD3d 904, 905 [2010]; Wengenroth v Formula Equip. Leasing, Inc., 11 AD3d 677, 680 [2004]; see generally Denny v Ford Motor Co., 87 NY2d 248, 256-259 [1995]).

Whether an action is pleaded in strict products liability, breach of warranty, or negligence, the plaintiffs must prove that the alleged defect is a substantial cause of the events which produced the injury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Beckford v Pantresse, Inc., 51 AD3d 958, 959 [2008]). A.O.

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Bluebook (online)
77 A.D.3d 612, 908 N.Y.S.2d 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fahey-v-ao-smith-corp-nyappdiv-2010.