Opinion
5828/04.
Decided November 22, 2006.
Brown Chiari, LLP, Michael C. Scinta, Esq., of Counsel, Attorneys for Plaintiffs.
Baxter Smith, P.C., William Boltrek, III, Esq., of Counsel, Attorneys for Defendants/Third-Party Plaintiffs.
Walsh Wilkins, Jill M. Tuholski, Esq., of Counsel, Attorneys for Third-Party Defendant.
This is an action wherein plaintiffs allege negligence by defendants, Cortos Brothers ("Cortos") and Tammy Bobseine ("Bobseine"), in the application of a hair product designed and manufactured by third-party defendant, Wella Corporation ("Wella"). Plaintiffs allege that the plaintiff infant was burned on her scalp through the misapplication of the product. Plaintiffs have not brought any claim against Wella. Cortos and Bobseine have initiated a third-party action against Wella. Wella now moves for summary judgment on the basis of spoliation of evidence and on the basis that it is otherwise entitled to judgment as a matter of law.
Plaintiff infant, Alyssa Walczak ("Alyssa"), was twelve (12) years old at the time her mother took her to Cortos Salon to have her hair highlighted. Bobseine was the hairstylist who employed Wella's product in the process of highlighting Alyssa's hair. Bobseine mixed the Wella product "Blondor" with a developer and used that mixture in the foil process to highlight Alyssa's hair. After the foiling, Bobseine sought to expedite the process through the use of a hair dryer. Toward the end of the process, Alyssa complained about a burning sensation on her scalp. Approximately one week later, Alyssa's mother reported to Cortos and Bobseine that Alyssa had in fact been injured by a severe burn on her scalp for which she was seeking medical treatment. Plaintiffs ultimately commenced this action against Cortos and Bobseine.
Cortos did not retain the actual product used on Alyssa as it was consumed and the container discarded in the ordinary course of business. Wella therefore has not had the opportunity to test the product actually used on Alyssa. It is undisputed that Cortos never experienced any other problems with the product involved or with similar products manufactured by Wella.
Wella seeks dismissal of the third-party action as a spoliation sanction. Wella argues that a sanction of dismissal is appropriate where a litigant, intentionally or negligently, disposes of a crucial item of evidence, thereby prejudicing the claim or defense of the opponent ( Iannucci v. Rose, 8AD3d 437 [2nd Dept 2004]; DiDomenico v. C S Aeromatik Supplies, Inc., 252 AD2d 41, 52 [2nd Dept 1998]; Standard Fire Ins. Co. v. Fed. Pacific Elec. Co., 14 AD3d 213, 218-219 [1st Dept 2004]).
Cortos counters that, in the absence of pending litigation, a defendant should not be sanctioned for objects that are discarded during normal business practices ( Conderman v. Rochester Gas Elec. Corp., 262 AD2d 1068 [4th Dept 1999]; Higgins v. Armored Motor Serv. of Am., Inc., 13 AD3d 1087 [4th Dept 2004]). Cortos also has cited to those cases involving alleged design defects where the allegations of strict products liability can be supported by other products of the same design ( Lawson v. Aspen Ford, Inc., 15 AD3d 628 [2nd Dept 2005]; Klein v. Ford Motor Co., 303 AD2d 376 [2nd Dept 2003]).
The issue of spoliation is intertwined with whether Wella is entitled to judgment as a matter of law dismissing the third-party complaint. Cortos alleges theories based on strict products liability alleging defective manufacture, defective design and failure to warn. Additionally, Cortos alleges negligent failure to warn, breach of the implied warranty of merchantability, and that the product in question was ultra hazardous. While the third-party complaint of Cortos and its bill of particulars are broadly worded, the record before the Court makes clear that Cortos is relying primarily on the alleged failure to warn under strict products liability and negligence theories.
Wella has submitted admissible evidence establishing that Cortos experienced no other problems with Wella products and that Wella has not experienced similar situations with this product unless it was negligently used by the hairstylist. Wella has further established that Bobseine did not use the product in accordance with Wella's instructions. Cortos and Bobseine counter that this is because there was a failure to warn of the product's dangers and because there was a failure to give full and proper instructions.
Wella has met its burden on the summary judgment motion to show that it did not defectively manufacture the product in question and that the product did not breach the implied warranty of merchantability or constitute an ultra hazardous product. Third-party plaintiff has not submitted any evidence to raise a triable issue of fact as to those theories. Moreover, because permitting the advancement of those theories to a jury would leave Wella in the impossible situation of defending against a claim based on a product it has not been able to inspect, a spoliation sanction of dismissal is likewise appropriate as to those theories. Accordingly, the claims of Cortos and Bobseine based on defective manufacture, breach of implied warranty of merchantability, and ultra hazardous product are dismissed as a sanction for spoliation and as a matter of law.
The only remaining theories available to Cortos and Bobseine are premised on defective design and the failure to warn under strict products liability and negligence theories. Wella has not submitted sufficient evidence in admissible form to warrant summary judgment in its favor on the theory of defective design as it has not offered any evidence from a person with knowledge of such design or a person with expertise in that field. Further, under Lawson and Klein, dismissal for spoliation on a defective design theory is not appropriate and the Court, as explained below, will fashion a more appropriate remedy at trial.
As to the failure to warn theories, Wella has met its burden on this motion through the testimony of James Jordon that Wella provides warnings and instructions for its products. Wella also provided an example of such warnings and instructions which were available to and were in fact reviewed by Cortos and Bobseine. However, Cortos and Bobseine have raised a triable issue of fact on the issue of failure to warn through the testimony of their expert. Further, the Fourth Department has recognized that the issue of failure to warn is almost always a question of fact for a jury ( Repka v. Arctic Cat, Inc., 20 AD3d 916 [4th Dept 2005]). The Court would otherwise be called upon to resolve a factual question as to the adequacy and accuracy of product warnings.
While the theories based on failure to warn and defective design have survived this motion, a remedy is nevertheless appropriate based on the spoliation which has worked to Wella's detriment. The Court will therefore fashion an instruction to the jury at trial which will give a negative inference charge against Cortos and Bobseine ( Marro v. St. Vincent's Hosp. Med. Ctr., 294 AD2d 341 [2nd Dept 2002]; Ifraimov v. Phoenix Indus. Gas, LLC, 4 AD3d 332 [2nd Dept 2004]; Melendez v. City of New York, 2 AD3d 170 [1st Dept 2003]) ( see, e.g., PJI 3d 1:77 [2006]). There is no need to wait for the trial date to make this decision because the spoliation of the product has occurred and is final, although the exact language of the charge should await the evidence.
Based on the foregoing, Wella's motion to dismiss on the basis of spoliation and for summary judgment is granted as to any theories premised on defective manufacture, breach of implied warranty of merchantability and ultra hazardous product. Further, the motion is denied as to theories based on defective design and failure to warn under strict products liability and negligence theories. The Court will impose a sanction for spoliation in the form of a negative inference charge to the jury as to those surviving theories.
Wella's counsel should settle the Order with counsel for Cortos and Bobseine.