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

Appellate Division of the Supreme Court of the State of New York·Decided April 6, 1965·Published·Cited by 15 cases

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.