McDaniel v. Williams

Appellate Division of the Supreme Court of New York

McDaniel v. Williams

23 A.D.2d 729, 257 N.Y.S.2d 702, 1965 N.Y. App. Div. LEXIS 4505

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

DecidedApril 6, 1965

StatusPublished

Cited by15 cases

This text of 23 A.D.2d 729 (McDaniel v. Williams) 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.

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McDaniel v. Williams, 23 A.D.2d 729, 257 N.Y.S.2d 702, 1965 N.Y. App. Div. LEXIS 4505 (N.Y. Ct. App. 1965).

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Opinion

Judgment in an action for negligence and breach of warranty, in favor of plaintiff in the sum of $10,226, unanimously modified, on the law and on the facts, to the extent of dismissing the complaint against defendant-appellant I. Posner, Inc., with $50 costs to said defendant-appellant, and, as so modified, affirmed, with $50 costs to plaintiff-respondent-appellant. No actionable negligence or breach of warranty was established against defendant-appellant I. Posner, Inc. Plaintiff relies on the failure of said defendant-appellant to give adequate warning of the inflammable propensity of its product. The professional gallon jar involved bore the legend “ keep away from open flame.” The evidence is that the danger was known to the user, an experienced beautician. Where the danger is known to the user, no warning of the danger is required. {Howard Stores Corp. v. Pope, 1 N Y 2d 110, 115; Bosebrock v. General Elec. Co., 236 N. Y. 227, 237-238.) In the circumstances, we find it unnecessary at this time to decide whether the legend was sufficient. (See Kaempfe v. LeJm é Fink Prods. Corp., 21 A D 2d 197.) Concur — Yalente, J. P., McNally, Stevens, Eager and Steuer, JJ.

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Judgment in an action for negligence and breach of warranty, in favor of plaintiff in the sum of $10,226, unanimously modified, on the law and on the facts, to the extent of dismissing the complaint against defendant-appellant I. Posner, Inc., with $50 costs to said defendant-appellant, and, as so modified, affirmed, with $50 costs to plaintiff-respondent-appellant. No actionable negligence or breach of warranty was established against defendant-appellant I. Posner, Inc. Plaintiff relies on the failure of said defendant-appellant to give adequate warning of the inflammable propensity of its product. The professional gallon jar involved bore the legend “ keep away from open flame.” The evidence is that the danger was known to the user, an experienced beautician. Where the danger is known to the user, no warning of the danger is required. {Howard Stores Corp. v. Pope, 1 N Y 2d 110, 115; Bosebrock v. General Elec. Co., 236 N. Y. 227, 237-238.) In the circumstances, we find it unnecessary at this time to decide whether the legend was sufficient. (See Kaempfe v. LeJm é Fink Prods. Corp., 21 A D 2d 197.) Concur — Yalente, J. P., McNally, Stevens, Eager and Steuer, JJ.

Joanna Andrulonis, Individually and as Conservator of the Property of Jerome Andrulonis, Plaintiffs-Appellees/cross-Appellants v. United States of America, Glatt Air Techniques, Inc. Glatt Gmbh Wisconsin Alumni Research Foundation, Inc. Warf Institute, Inc. Raltech Scientific Services, Inc., Ralston Purina Company Eli Lilly and Company and John L. Thompson and Sons and Company, United States of America, Defendant-Appellant/cross-Appellee. United States of America, Third-Party v. New York State Department of Health, Third-Party

924 F.2d 1210 (Second Circuit, 1991)

Andrulonis v. United States

724 F. Supp. 1421 (N.D. New York, 1989)

Mays v. Ciba-Geigy Corp.

661 P.2d 348 (Supreme Court of Kansas, 1983)

Kerr v. Koemm

557 F. Supp. 283 (S.D. New York, 1983)

Jiminez v. Dreis & Krump Manufacturing Co.

552 F. Supp. 301 (S.D. New York, 1982)

McFadden v. Haritatos

86 A.D.2d 761 (Appellate Division of the Supreme Court of New York, 1982)

Heller v. Encore of Hicksville, Inc.

76 A.D.2d 917 (Appellate Division of the Supreme Court of New York, 1980)

Thelma Billiar v. Minnesota Mining and Manufacturing Company, Defendant/third Party Plaintiff v. Mennen-Greatbatch Electronics, Third Party

623 F.2d 240 (Second Circuit, 1980)

Frank Borowicz v. Chicago Mastic Company, Frank Borowicz v. Chicago Adhesive Products Company

367 F.2d 751 (Seventh Circuit, 1966)

Littlehale v. E. I. Du Pont De Nemours & Co.

268 F. Supp. 791 (S.D. New York, 1966)

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23 A.D.2d 729, 257 N.Y.S.2d 702, 1965 N.Y. App. Div. LEXIS 4505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-williams-nyappdiv-1965.

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