Rivera v. Berkeley Super Wash, Inc.

44 A.D.2d 316, 354 N.Y.S.2d 654, 1974 N.Y. App. Div. LEXIS 5245

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1974
• Status: Published

Opinions

Shapiro, Acting P. J.

The question presented is whether the contrast Statute of Limitations (which commences running at the time of sale) or the tort Statute of Limitations (which commences at the time of injury) is to be. applied in this case. The determination is crucial to the infant plaintiff since, if the contract Statute of Limitations is applied, he would be deprived of the possibility of proceeding under the doctrine of strict products liability recently announced in Codling v. Paglia (32 N Y 2d 330) and amplified in Velez v. Craine & Clark Lbr. Corp. (33 N Y 2d 117). The new strict-products-liability doctrine permits recovery of damages for personal injuries suffered through the normal and intended use of a defective instrumentality or, as Judge Jones concisely stated it in the first paragraph of his opinion in Codling (p. 335), “ we hold that today the manufacturer of a defective product may be held liable to an innocent bystander, without proof of negligence, for damages sustained in consequence of the .defect.”

As recently as 1969, by a 4 to 3 vote, the Court of Appeals in Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340) decided that the contract Statute of Limitations applies to a breaehof-warranty cause of action brought by a remote user of an allegedly defective product seeking recovery of damages for personal injuries. By reason of the Codling and Veles decisions, we hold that Mendel is not applicable to strict-products-liability cases and that the three-year limitation period for personal injury claims (CPLR 214, subd. 5) and themormal tort rule that the claim accrues at the time of the injury apply to the plaintiffs’ causes of action which seek recovery on the strict-products-liability theory.

THE FACTS

The infant plaintiff, Alberto Rivera, Jr., celebrated his eighth birthday on October 2, 1967. On that day, he accompanied his aunt while she .did her laundry at the defendant Berkeley Super Wash, Inc. (Berkeley) self-service laundromat in Brooklyn. After the laundry was washed, it was placed by the infant’s aunt, still wet, in a centrifugal laundry extractor manufactured by the defendant-appellant Bock Laundry Machine Company (Bock), of Toledo, Ohio, and sold and delivered by it sometime in 1959. The function of such a machine is to extract excess moisture from laundry after washing, thereby reducing the necessary drying time. The aunt started the extractor in operation and left to get change while the infant plaintiff remained behind. The lid of the extractor was supposedly incapable of opening during the machine’s operating cycle.

On this occasion, however, and due to an alleged defect, the lid popped open while the machine was still in operation, with the interior compartment spinning at a high rate of speed.¹ The infant plaintiff reached in with his right arm in an attempt to remove the laundry, and some of the wash being whipped about caught his arm, causing multiple fractures of the arm and right scapula. The arm subsequently had to be amputated at the elbow.

The plaintiffs — the infant and his parents — commenced this litigation in 1967 (some eight years after the sale of the extractor by Bock), seeking to recover damages for the personal injuries and loss of services .resulting from alleged negligence in the design, manufacture and maintenance of the extractor. Subsequently, Berkeley commenced a third-party action against certain additional parties and also asserted a cross claim against Bock.

The plaintiffs’ complaint was amended in March, 1973 by the addition ¡of two causes of action on behalf of the infant and his parents, ¡respectively, alleging (breaches of the implied warranties of merchantability and fitness for use. Bock moved for summary judgment dismssing .the breach-of-warranty causes of action, asserting that they were time barred by virtue of the expiration of the six-year ¡Statute of Limitations (former Civ. Prac. Act, § 48; CPLR 213). The ¡motion was denied, without prejudice to renewal following an examination ¡before trial.

Upon completion of the discovery proceedings, the plaintiffs, in September, 1973, moved for leave to serve a further amended complaint setting forth yet two additional causes of action (as the fifth and sixth) on behalf of the infant and his parents. These additional causes of actions are grounded on Bock’s strict liability in tort and are based on the recent decision of the Court of Appeals in Codling v. Paglia (32 N Y 2d 330, supra). Bock then (as a cross motion) renewed its motion for summary judgment as to the third and fourth causes of action. It is from the granting of leave to the plaintiffs to serve the further amended complaint and the concomitant denial of Bock’s renewed motion that Bock presently appeals.

A DISCUSSION OF THE LAW

The rapid ¡growth and development of the law of products liability has been extensively noted.² In New York, the scope of a manufacturer’s liability in product liability actions for personal injuries and property damage has been gradually expanded since MacPherson v. Buick Motor Co. (217 N. Y. 382 [1916]) dispensed with the requirement of privity in cases based on negligent manufacture. The privity limitation retained vitality, however, in cases in which breach of warranty, either express or implied, was alleged (Turner v. Edison Stor. Battery Co., 248 N. Y. 73 [1928] ).¡ ¡Significant progress toward removing the privity harrier was made in Greenberg v. Lorens (9 NY 2d 195 [1961] [recovery for personal injuries on breach-of-warranty theory permitted for the infant family member not' in privity with the retail dealer of a food product]); Randy Knitwear v. American Cyanamid Go. (11N Y 2d 5 [1962] [manufacturer of a chemical used to treat fabrics held liable to a remote purchaser in an action on express warranty]; and Goldberg v. Kollsman Instrument Corp. (12 N Y 2d 432 [1963] [breach of warranty held to be a “ tortious wrong ” (p. 436) and an airplane manufacturer cast in liability for wrongful death of a passenger resulting from a defective airplane component manufactured by an independent supplier]).

Codling v. Paglia (32 N Y 2d 330, supra) represents the culmination of the evolution in New York of the doctrine of strict ' products liability, a doctrine which earlier found acceptance in a number of other jurisdictions.³ To be sure, the terms used to describe the cause of action which has evolved have caused their share of confusion but whether we speak in terms of “ enterprise liability”, ‘ ‘ strict liability in tort” or “ strict products liability” (the term apparently preferred by our Court of Appeals) the broad principle laid down in Codling is as follows (p. 342): i 1 Under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used (whether by the person injured or damaged or by a third person) for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.” (See, also, Singer v. Walker, 32 N Y 2d 786 [1973]; Velez v. Craine & Clark Lbr. Corp., 33 N Y 2d 117, supra.)4 However, irrespective of the particular terminology employed, the clear intent of the recent decisions is to protect a party injured—be he purchaser, user or innocent bystander—by a defective product, subject to the conditions set forth by Judge Jones and quoted above (see, also, Velez, supra, p. 122).

Of course, the fact that New York now recognizes a strictproduets-liability cause of action does not mean that breach of warranty under the Uniform Commercial Code no longer exists. The breach-of-warranty causes of action under the code are primarily related to the sales contract (see, e.g., Uniform Commercial Code, § 2-725) and are'.separate from a strict-products-liability cause of action, which is wedded to- the concept of a tortious wrong. Actions for breach of warranty under the code are subject to all the limitations and requirements imposed by the code. Thus the code, enacted with the purpose, among others, of codifying and expanding the remedies available to parties to sales contracts, does not, and never attempted to, provide an exclusive remedy in the field of products liability. (See dissent of Judge Breitel [now Chief Judge] in Mendel v. Pittsburgh Plate Glass Co., 25 N Y 2d 340, 351-352, supra.) The result of the legal development of a strict-products-liability cause of action is that redress for personal injuries caused by defective products may now be sought in New York under several different theories— (1) pure common-law negligence, (2) breach of warranty and (3) strict products'liability—depending on the particular circumstances of the individual case.⁵

Since there is now a cause of action in strict products liability, we are here squarely confronted with the question posed at the outset of this opinion, viz., which ¡of two possible Statutes of Limitations applies — the six-year period for actions based upon a contractual obligation or liability (CPLE 213, subd. 2) or the three-year period for actions to recover damages for personal injuries (CPLE ¡214, subd. 5).⁶

The majority opinion in Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340, supra), as noted, held that breach-of-warranty causes of action, since they sound in contract, are governed by the six-year contract Statute of Limitations.⁷ Further, Mendel reiterated the long-standing rule in New York that a cause of action for breach of warranty accrues 'at the time of the sale of the offending instrumentality (Schwartz v. Heyden Newport Chem. Corp., 12 N Y 2d 212, 215 [1963]); see, also, Mittasch v. Seal Lock Burial Vault, 42 A D 2d 573, 574 [1973]). In reaching these conclusions the Mendel majority found the .1953 decision in Blessington v. McCrory Stores Corp. (305 N. Y. 140) to be controlling.

Eecognizing that as an intermediate appellate court -we are bound to follow an applicable decision of the Court of Appeals, unless subsequent events establish that the raison d’etre for the decision no longer exists, we have come to the conclusion that .that is the fact here and that, on the operative facts in this record, Mendel is no longer viable.

Blessington involved .a suit to recover damages for pain and suffering brought by the personal representative of a deceased infant against, among others, the retailer and the manufacturer of an inflammable cowboy suit which, when it came in contact with a flame, ignited and caused fatal burns. There, contrary to the facts in our case, the plaintiff’s causes of action in negligence against the defendants were time-barred by the then-applicable three-year 'negligence Statute of Limitations (former Civ. Prac. Act, § 49, subd. 6). Hence, in order to afford the plaintiff a non-barred remedy, the cause of action directed against the retailer was held to be based on an implied contractual obligation. Thus, said the majority, “ such a cause of action gets the benefit .of the six-year limit of subdivision 1 of section 48 of the Civil Practice Act ’ ’ (Blessington v. McCrory Stores Corp., 305 N. Y. 140, 147, supra; emphasis supplied).

Significant differences between the Blessington and Mendel situations are apparent. First, Blessington was decided well before the ‘ ‘ citadel of privity ’ ’ had even begun to be eroded in New York in breach-of-warranty suits. The breaeh-of-warranty cause of action in Blessington was brought against an immediate vendor, not a remote supplier. Thus, the privity requirement was satisfied and the contract .Statute of Limitations seemed to be the 'logical and reasonable choice as the proper limitation period. On the other hand, at the time Mendel was decided, the once-formidable privity requirement had been riddled with exceptions (see, e.g., Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432, supra). Thus, the Mendel majority’s choice of the contract limitation period was less than compelling. Secondly, in Blessington the alternative to application of the six-year contract Statute of Limitations was to apply the Statute of Limitations for actions to recover damages for a personal injury resulting from negligence, which would have outlawed the plaintiff’s cause of action.⁸ When Mendel was decided, the possible alternative Statute of Limitations (CPLR 214, subd. 5) was (and still is) phrased in terms of actions to recover damages for a personal injury, but not limited solely to negligence situations. This alternative Statute of Limitations confronted by the Mendel court was, in our opinion, a far more plausible and fitting choice than the alternative statute .faced by the Blessing-ton court. Third, and perhaps most important in view of the policy considerations previously alluded to, the result of the application of the contract limitation period in Blessington was to save the infant’s cause of action by virtue of the longer time period involved. In Mendel, rigorous application of the contract limitation period to the breach-of-warranty cause of action, which under the law accrued at the time of the sale of the defective instrumentality (a sale, it is noted, with which Mrs. Mendel had no involvement or connection), resulted in defeating the apparently meritorious claim.

The Mendel majority was not unmindful of the illogical and unjust effect of its holding—the expiration of the 'Statute of Limitations before the cause of action ever came into existence — but nonetheless expressed a willingness to sacrifice certain meritorious claims in order to discourage the commencement of unfounded suits against manufacturers ad infinitum (Mendel v. Pittsburgh Plate Glass Co., 25 N Y 2d 340, 346, supra). Apparently overlooked and ignored was the undeniable fact that a suit against a ¡manufacturer based solely upon a claim of negligence can be, and often is, brought many years after the offending product was manufactured and placed on the market. Indeed, the pure negligence causes of action in the instant litigation were first asserted some eight years after the 1959 sale of the extractor (but within the allowable time period after the accident [CPLR 214, subd. 5]).

Further, the Mendel majority relied on the language of sections 2-725 and 2-318 of the Uniform Commercial Code (the provisions of which were not in effect at the time of the Mendel sale) for its conclusion that the contract .Statute of Limitations applied. However, the Official Comment of the National Conference of Commissioners on Uniform .State Laws and the American Law Institute to the latter section indicates that the section does not provide the exclusive remedy in strict-produetsliability cases. 'Section 2-725, by its terms, is directed toward the genuine breach of contract situation involving buyer and seller, subdivision (1) thereof explicitly referring to actions “for breach of any contract for sale”.⁹ In any event,-we believe that Codding overruled Mendel’s reliance on the Uniform Commercial ¡Code when it (Codling) provided an alternative remedy sounding in tort. We are fortified in this view when we recall that in Velez v. Craine & Clark Lbr. Corp. (33 N Y 2d 117,124-125, supra) Judge Jones, again writing for the court, said that “ strict products liability sounds in tort rather than in contract.”

It has been suggested -both that the plaintiff’s burden of proof in strict-produ-cts-liability causes of action is “ heavy rather than light”¹⁰ and “really quite ‘light’”.* ¹¹ Wherever the truth may lie, it seems unwise to accept the sacrifice of any meritorious claim as the necessary price to be paid for the insulation of manufacturers from exposure to meritless claims, especially since these same manufacturers are open to suits in negligence. Moreover, and here we find further justification for our departure from Mendel, the policy decision behind the establishment of a striet-products-liability action having been made by the Court of Appeals, it would appear that more harm is done by refusing to recognize its essential character as based in tort than (by intentionally misapprehending it for the sake of protecting against false claims and thereby potentially blunting its usefulness and obscuring its socially desirable goals in cases in which there is merit. It is clearly unjust to deny an injured party the possibility of compensation on the wholly arbitrary basis of a lapse of a period of time, the inception of which period of time is in no way connected with him and the passage of which bears no relation to any laches on his part.

Application of the contract 'Statute of Limitations to the striet-products-liability causes of action here, claims grounded in the concept of a tortious wrong, would only serve to duplicate the unfair Mendel result. The infant plaintiff Rivera was born in 1959, the same year in which the sale of the extractor took place. Bight years later this machine was to cause the loss of his arm. To apply the contract Statute of Limitations, with its concomitant rule that the cause of action accrued at the time of sale, would mean that the limitation period expired two years prior to the accident.

Since the Court of Appeals has seen fit to establish a new cause of action for strict products liability, independent of warranty, we see no valid reason for extending the Mendel rule to the striet-products-liability concept. Bather we hold that the three-year Statute of Limitations applicable to actions to recover damages for personal injuries, with accrual of the action at the time of injury, is applicable as well to an action in strict products liability. This approach has been adopted by at least one court at nisi prius and is followed in many other jurisdictions (see Wilsey v. Mulkey Co., 56 Misc 2d 480; Rosenau v. City of New Brunswick, 51 N. J. 130 [1968]; Nelson v. Volkswagen of Amer., 315 F. Supp. 1120,1122-1123; Abate v. Barkers of Wallingford, 27 Conn. .Sup. 46 [1967]; Williams v. Brown Mfg. Go., 45 Ill. 2d 418, 431-433 [1970]; Holifield v. Setco Inds., 42 Wis. 2d 750 [1969]; Arrow Transp. Co. v. Fruehauf Corp., 289 F. Supp. 170 [Dist. Ct. Ore., 1968]; Tucker v. Capitol Mach., 307 F. Supp. 291 [M. D. Pa., 1969]; Hornung v. Richardson Merrill, Inc., 317 F. Supp. 183 [Dist. Ct. Mont., 1970]; Heavner v. Uniroyal, Inc., 63 N. J. 130 [1973]).

THE TECHNICAL PLEADING ISSUES

The summons and complaint in the instant case were served in 1967, and in its original form the complaint alleged only causes of action in pure negligence. These claims are concededly timely and are not attacked. The third and fourth causes of action, for (breach of warranty, were not asserted for the first time until 'March, 1973, and they should have been dismissed, since they would have been time-barred even had they been asserted in the original complaint (former Civ. Prac. Act, § 48; CPLR 213; Uniform Commercial Code, § 2-725; Mendel v. Pittsburgh Plate Glass Co., (25 N Y 2d 340, supra, which is still the law as to warranty causes of action).

The infant plaintiff, not having a claim for damages until 1967 (when he was injured) and thus not until then “ entitled to commence an action ” (CPLR 208), cannot invoke the benefit of the tolling provisions of section 60 of the former Civil Practice Act and CPLB 208 as to the third cause of action. The result thus is that the infant’s breach of warranty cause of action is time-barred. Even were the tolling provisions of CPLR. 208 available .to the infant as to his (third) cause of action, his adult parents would not obtain the benefits of such a toll as to their derivative (fourth) cause of action based on breach of warranty (Francies v. County of Westchester, 3 A D 2d 850; Constantinides v. Manhattan Tr. Co., 264 App. Div. 147, 151; Pitrelli v. Cohen, 257 App. Div. 845).

However* in view of our conclusion that a strict-pr oductsliability cause of action is founded on a tortious wrong and thus is governed by accrual and limitation rules .applicable to claims sounding in tort, the fifth cause of action, asserted on behalf of the infant plaintiff, is timely since it accrued in 1967 (when he was injured) and the CPLB 208 toll can be invoked. The toll is not applicable to the derivative (sixth) cause of action and thus the plaintiffs’ motion, insofar as it sought leave to assert that cause of action, should have been denied.

The order appealed from should therefore be modified in. accordance with this opinion, on the law, and, as so modified, affirmed, with $20 costs and disbursements to the plaintiffs.

1 . Although there is no indication in the present record as to why the extractor malfunctioned in this manner, we note the discussion of a similar occurrence described in Westerberg v. School List. No. 792 of Todd County (276 Minn. 1). (See, also, record on appeal in Lewin v. Bock Laundry Mach. Co., 38 A D 2d 791.)

2 . See, e.g., Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791; The Expanding Scope of Enterprise Liability, 69 Col. L. Rev. 1084 (1969); Products Liability: Strict Liability in Tort, 13 ALR 3d 1057; Strict Products Liability and the Bystander, 64 Col. L. Rev. 916 (1964).

3 . See, e.g., Suvada v. White Motor Co. (32 Ill. 2d 612 [1965]); Greenman, v. Yuba Power Prods. (59 Cal. 2d 57 [1963]); Nalbandian v. Byron Jackson Pumps (97 Ariz. 280 concurring opinion [1965]); Garthwait v. Burgio (153 Conn. 284 [1965]); Cornette v. Searjeant Metal Prods. (147 Ind. App. 46); Hawkeye-Security Ins. Co. v. Ford Motor Co. (174 N. W. 2d 672 [Iowa, 1970]); Dealers Transp. Co. v. Battery Distr. Co. (402 S. W. 2d 441 [Ky. App., 1965]); Meche v. Farmers Drier & Stor. Co. (193 So. 2d 807 [La. App. 1967]); cf. Cova v. Harley Davidson Motor Co. (26 Mich. App. 602 [1970]); State Stove Mfg. Co. v. Hodges (189 So. 2d 113 [Miss., 1966]); Williams v. Ford Motor Co. (411 S. W. 2d 443 [Mo. App. 1966]); Santor v. A & M Karagheusian (44 N. J. 52 [1965]); Buttrick v. Arthur Lessard & Sons, Inc. (110 N. H. 36); Lonzrick v. Republic Steel Corp. (1 Ohio App. 2d 374, affid. 6 Ohio St. 2d 227); Cochran v. Brooke (243 Ore. 89); Webb v. Zern (422 Pa. 424); Ford Motor Co. v. Lonon (217 Tenn. 400 [1966]); Shamrock Fuel & Oil Sales Co. v. Tunks (416 S. W. 2d 779 [Tex.]); Dippel v. Sciano (37 Wis, 2d 443 [1967]).

4 . We note in .passing that this court spoke of a “ warranty theory ” in a post-Codling ease in which we ruled, via a common-sense extension of the rule of Goldberg v. Kollsman Instrument Corp. (12 N Y 2d 432, supra), that an injured plaintiff (purchaser and user), could assert a claim for redress against the manufacturer of an allegedly defective component part of the plaintiff’s automobile (Clark v. Bendix Corp., 42 A D 2d 727 [1973]).

5 . For a discussion of the question of the interrelationship of the strict products liability and the implied warranty in the absence of privity theories of recovery, see, generally, 2 Frumer and Friedman, Products Liability, § 16A, subd. [4] (1973); Rosenau v. City of New Brunswick (51 N. J. 130, 143 [1968] ; Buttrick v. Arthur Lessard & Sons, Inc., 110 N. H. 36, 37-39; see, also, International Union of Operating Engineers Local 57 v. Chrysler Motors Corp. (106 R. I. 248); Jones v. Boggs & Buhl (355 Pa. 242); 2 Restatement 2d, Torts, § 402 A, comment m.

6 . The four-year limitation period set forth in section 2-725 of the Uniform Commercial Code for actions for “ breach of any contract for sale ” is not applicable to the instant case, since it only has prospective application from September 27, 1964 (Uniform Commercial Code, § 2-725, subd. [4]).

7 . The Mendel decision has been severely criticized by commentators and we believe justifiably so. Even an incomplete compilation of such critical commentary is impressive. See, e.g., Symposium on Mendel v. Pittsburgh Plate Glass Co. (six articles), 45 St. John’s L. Rev. 63, 71, 76, 86, 96, 104 (1970); Annual Survey of New York Law, Civil Practice, McLaughlin, 22 Syracuse L. Rev. 55, 61 (1970); 39 Fordham L. Rev. 152,156-160 (1970); Nelson v. Volkswagen of Amer., 315 F. Supp. 1120-1122 [D. C. N. H., 1970]; O’Keefe v. Boeing Co., 335 F. Supp. 1104,1114-1115 [S. D. N. Y., 1971]. We have found no authoritative support for Mendel.

8 . Subdivision 6 of section 49 of the former Civil Practice Act provided as follows:

“ § 49. Actions to be commenced within three years. The following actions must be commenced within three years after the cause of action has accrued: * ** 6. An action to recover damages for an injury to property or a personal injury, resulting from negligence.”

9 . See Rosenau v. City of New Brunswick (51 N. J. 130, 143, supra); 45 St. John’s L. Rev. 90-91).

10 . Mendel v. Pittsburg Plate Glass Co. (25 N Y 2d 340, 351 [dissent by Judge Bbeitel (now Chief Judge)]).

11 . 45 St. John’s L. Rev., 102.