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Yun Tung Chow, et al v. Reckitt & Colman

May 10, 2011

YUN TUNG CHOW, ET AL., APPELLANTS,
v.
RECKITT & COLMAN, INC., ET AL., RESPONDENTS, 55TH REALTY INC., (AND OTHER ACTIONS) DEFENDANT.



The opinion of the court was delivered by: Lippman, Chief Judge:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Plaintiff, Yun Tung Chow, and his wife brought this products liability action against the defendant entities responsible for the manufacture, distribution and package design of a product sold under the brand name Lewis Red Devil Lye (RDL). Defendants moved for summary judgment, and Supreme Court granted the motion. The Appellate Division affirmed, with two Justices dissenting solely as to the propriety of summary dismissal of the defective design cause of action (69 AD3d 413 [1st Dept 2010]). Plaintiffs then appealed to this Court as of right (CPLR 5601 [a]). We conclude, in accordance with settled summary judgment and products liability principles, that a defendant moving for summary judgment in a defective design case must do more than state, in categorical language in an attorney's affirmation, that its product is inherently dangerous and that its dangers are well known. Rather, to be entitled to summary judgment in such a case, a defendant must demonstrate that its product is reasonably safe for its intended use; that is, the utility of the product outweighs its inherent danger. Defendants failed to make such a showing here.

RDL is 100% sodium hydroxide, a chemical compound commonly known as lye. The product is sold in the form of dry crystals, and it is packaged and marketed to laypersons as a product that clears clogged drains.

Plaintiff was injured while using RDL to clear a clogged floor drain in the kitchen of the Manhattan restaurant where he worked. Plaintiff cannot read English and testified through an interpreter that, although he had used RDL many times in the past, he never read the instructions and warnings printed on RDL's bottle. Instead, he learned how to handle RDL by following the examples of others he observed using the product. Normally, he testified, he would take one spoonful of RDL, add one cup of water, and then pour that solution down the clogged drain. Then, "right after that," he would flush the drain with water and the drain would be clear.

On the day in question, plaintiff noticed that the restaurant's kitchen floor drain had become clogged. He located the restaurant's bottle of RDL, but found that there was little remaining in the bottle, so he put all that was left, approximately three spoonfuls, into a dry aluminum container. Plaintiff then poured roughly three cups of cold water into the container. He did not observe any reaction in the container as he walked four steps to the drain, bent at the waist, and poured the solution down the floor drain. Immediately after plaintiff poured the solution down the drain, it splashed back out of the drain and onto plaintiff's face. He sustained serious burns and ultimately lost sight in his left eye as a result of the splash back.

As defendants stress, plaintiff's handling of the product was not in accordance with the label's instructions and warnings. The label warns that splash back and serious injury may occur if RDL is not used as directed. Under "DIRECTIONS FOR USE," the label states that protective eyewear and rubber gloves are to be used when handling RDL, and the user is advised that one should "NEVER POUR LYE DIRECTLY FROM CONTAINER INTO DRAIN." Instead, a plastic spoon is to be used to dispense the product (the user is specifically advised to keep RDL "away from contact with aluminum utensils"). One tablespoon is to be spooned into the clogged drain, then the user is to wait 30 minutes. After 30 minutes, the user may check to see if the drain is clear by "adding several cups of COLD water." If the drain is not clear the label advises that a repeat application should be attempted only once, and if the drain continues to be clogged a plumber should be consulted.

The Appellate Division was divided with respect to whether defendants were entitled to summary judgment on plaintiffs' defective design claim, but it was unanimous in affirming summary judgment on plaintiffs' strict products liability cause of action based on an alleged failure to warn (69 AD3d 416).*fn1 The adequacy of a product's warnings, however, even when coupled with a user's failure to read or follow them, does not end the inquiry with respect to a defective design claim.

Our law in this area is well established. A "defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use" (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983] [internal quotation marks and citation omitted]). If the "utility" of a product "does not outweigh the danger inherent in its introduction into the stream of commerce," then the product is defectively designed (id. [internal quotation marks and citation omitted]).

Defendants focus on plaintiff's mishandling of the product and asserted deficiencies in his expert's affidavit, but, as with any motion for summary judgment, defendants must first show an entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]). The issue of whether a product is defectively designed such that its utility outweighs its inherent danger is generally one "for the jury to decide . . . in light of all the evidence presented by both the plaintiff and defendant" (Voss, 59 NY2d at 108).

In support of their motion here, however, defendants state only, in effect, that lye is what it is, that everyone knows lye is dangerous, and that any variation in RDL's composition would, by necessity, result in a different product because such an altered product would not be 100% sodium hydroxide. While it is true that lye is dangerous and that this product is lye, a mere statement in an attorney's affirmation in support of a motion for summary judgment to that effect does not result in a shift of the burden to plaintiff to then explain how RDL could be made safer. At this stage, defendants cannot rely simply on the fact that their product is what they say it is and that everyone knows that lye is dangerous; that only begs the question at the heart of the merits of the defective design claim: knowing how dangerous lye is, was it reasonable for defendants to place it into the stream of commerce as a drain cleaning product for use by a layperson? Defendants offered no answer to this question, and thus, did not demonstrate their entitlement to judgment as a matter of law.

Plaintiff's mishandling of the product here, alone, is not enough to entitle defendants to summary judgment. Summary judgment in a strict products liability case may be granted on the basis of the plaintiff's conduct when the plaintiff's actions constituted "the sole proximate cause" of his or her injuries (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 534 [1991]). Defendants failed to show that plaintiff's handling of RDL constituted the sole proximate cause of his injuries because a factfinder could conclude on the basis of the record before us that the product was so inherently dangerous that it should never have found its way into the stream of commerce as packaged and marketed (see Voss, 59 NY2d at 107 ["Liability attaches when the product, as designed, presents an unreasonable risk of harm to the user"]). That is to say, even with adequate warnings, a product may be so dangerous, and its misuse may be so foreseeable, that a factfinder employing the required risk-utility analysis our case law has established could reasonably conclude that "the utility of the product did not outweigh the risk inherent in marketing" it (Denny v Ford Motor Co., 87 NY2d 248, 257 [1995] [quotation marks and citation omitted] [listing seven factors identified as relevant to the risk-utility analysis: "(1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes"]).

Defendants here may ultimately prevail on the merits by showing that RDL's utility outweighs its inherent danger and by demonstrating through expert testimony that it was not feasible to design a safer, similarly effective and reasonably priced alternative product (see e.g. Voss, 59 NY2d at 108-109). On this motion, however, merely stating in an attorney's affirmation that RDL is dangerous, that everyone knows it is dangerous, and that precise warnings of its danger were given and not followed was insufficient to entitle defendants to summary judgment as a matter of law. Defendants were required to demonstrate that RDL was reasonably safe for its intended use, but they offered no such evidence.

Accordingly, the Appellate Division order should be reversed, with costs, and the motion of ...


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