Rogers v. Cosco, Inc.

Appellate Division of the Supreme Court of New York

Rogers v. Cosco, Inc.

303 A.D.2d 276, 755 N.Y.S.2d 612, 2003 N.Y. App. Div. LEXIS 2776

Appellate Division of the Supreme Court of the State of New York·Decided March 20, 2003·Published·Cited by 1 cases

Opinion

—Judgment, Supreme Court, New York County (Emily Goodman, J.), entered July 12, 2002, upon a jury verdict in favor of plaintiff Eileen Rogers and against defendants, in the total amount of $172,537.71, unanimously affirmed, without costs.

The trial evidence, fairly considered, permitted the jury reasonably to conclude that the folding step stool, as designed by defendant Cosco and sold by defendant Odd Lot Trading, presented an unreasonable, foreseeable danger against which plaintiff, its purchaser and user, was not adequately warned. Accordingly, the verdict was not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129, 133-134 [1985]). The conflicting evidence as to whether a warning label had been placed on the step stool at Cosco’s plant and as to whether, if it had been so placed, it had been removed prior to leaving Cosco’s control, raised credibility issues which were the jury’s prerogative to resolve as it did.

Contrary to defendants’ claim, plaintiff met her burden under her failure to warn theory to show that the lack of a warning and/or its inadequacy was the proximate cause of her injury (see Johnson v Johnson Chem. Co., 183 AD2d 64 [1992]; cf. Sosna v American Home Prods., 298 AD2d 158 [2002]).

We have considered appellants’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Sullivan, Ellerin, Friedman and Gonzalez, JJ.

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—Judgment, Supreme Court, New York County (Emily Goodman, J.), entered July 12, 2002, upon a jury verdict in favor of plaintiff Eileen Rogers and against defendants, in the total amount of $172,537.71, unanimously affirmed, without costs.

The trial evidence, fairly considered, permitted the jury reasonably to conclude that the folding step stool, as designed by defendant Cosco and sold by defendant Odd Lot Trading, presented an unreasonable, foreseeable danger against which plaintiff, its purchaser and user, was not adequately warned. Accordingly, the verdict was not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129, 133-134 [1985]). The conflicting evidence as to whether a warning label had been placed on the step stool at Cosco’s plant and as to whether, if it had been so placed, it had been removed prior to leaving Cosco’s control, raised credibility issues which were the jury’s prerogative to resolve as it did.

Contrary to defendants’ claim, plaintiff met her burden under her failure to warn theory to show that the lack of a warning and/or its inadequacy was the proximate cause of her injury (see Johnson v Johnson Chem. Co., 183 AD2d 64 [1992]; cf. Sosna v American Home Prods., 298 AD2d 158 [2002]).

We have considered appellants’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Sullivan, Ellerin, Friedman and Gonzalez, JJ.

Rogers v. Cosco, Inc., 303 A.D.2d 276, 755 N.Y.S.2d 612, 2003 N.Y. App. Div. LEXIS 2776 (N.Y. Ct. App. 2003).

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Opinion

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