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The Rogak Report: 02 Jan 2007 ** Products Liability - Chairs **

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  • Lawrence Rogak
    SUIT BASED ON CHAIR COLLAPSE IS DISMISSED: PLAINTIFF S WEIGHT EXCEEDED CHAIR S WEIGHT LIMIT WARNING ON THE LABEL Charles Kovit v CVS et al., 2006 NY Slip Op
    Message 1 of 1 , Jan 2, 2007
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      SUIT BASED ON CHAIR COLLAPSE IS DISMISSED: PLAINTIFF'S WEIGHT
      EXCEEDED CHAIR'S WEIGHT LIMIT WARNING ON THE LABEL

      Charles Kovit v CVS et al., 2006 NY Slip Op 52466(U) (Supreme Court,
      Nassau County) (LaMarca, J.)

      In this action, plaintiff sued for personal injuries he allegedly
      sustained on July 12, 2003, when a chaise lounge collapsed as he sat
      upon it. In his complaint, plaintiff alleged that he purchased the
      chair at CVS in Woodmere, New York, sometime before July 12, 2003.
      Plaintiff alleged that the chair was in a dangerous, defective and
      unsafe condition which was created by CVS. He further alleged that
      the chair was in that condition long enough that CVS had actual or
      constructive notice of it.

      "The court notes that the plaintiff has not alleged that the chair
      suffered from a manufacturing or design defect. Negligence, premised
      upon the sale of a dangerous defective product, is all that is
      alleged."

      "The defendants, CVS and ATICO, seek dismissal of the complaint based
      upon the spoliation of evidence. The chaise lounge that allegedly
      collapsed was never produced for their inspection. Sanctions for the
      spoliation of evidence are within the broad discretion of the courts.
      Iannucci v Rose, 8 AD3d 437, 778 NYS2d 525 (2nd Dept. 2004). The
      Court 'may, under appropriate circumstances, impose a sanction even
      if the destruction occurred through negligence rather than
      wilfulness, and even if the evidence was destroyed before the
      spoliator became a party, provided [the party] . . . was on notice
      that the evidence might be needed for future litigation.'
      Nevertheless, 'recognizing that striking a pleading is a drastic
      sanction to impose in the absence of wilful or contumacious conduct,
      courts will consider the prejudice that resulted from the spoliation
      to determine whether such drastic relief is necessary as a matter of
      fundamental fairness.' Where the moving party is not deprived of
      their ability to establish their claim or defense, a sanction less
      severe than striking a pleading is appropriate."

      "At his examination-before-trial, the plaintiff testified that he
      thought that his wife purchased the chair at CVS earlier in the
      summer. He further testified that house renovations were done at his
      home in the Summer of 2004 and that the chair might have gotten
      thrown out since it was no longer around. In response to this motion,
      plaintiff's wife states that she purchased the chair that hurt her
      husband at CVS and that, after her husband's accident, she removed a
      label from the chair and gave it to plaintiff's attorney. That label
      has not been produced, either."

      "The defendants' application to strike the pleading based upon the
      loss of the chaise is denied. Although this action was commenced on
      April 30, 2004, the defendants did not seek production of the chair
      until January 18, 2006. Thus, the defendants failed to demonstrate
      that the plaintiff intentionally attempted to hide or destroy
      evidence or that they negligently disposed of any key physical
      evidence after being placed on notice that it might be needed for
      future litigation. As for prejudice, neither party has had the chair
      examined by an expert. Thus, the parties are at an equal disadvantage
      regarding the missing chair. The plaintiff and defendants face
      similar evidentiary difficulties as a consequence of the chair's
      unavailability. Thus, this is not a case in which the plaintiff
      reaped an unfair advantage in the litigation as a result of his
      conduct."

      "In the alternative, defendants seek summary judgment dismissing the
      complaint."

      "To maintain a negligence cause of action, plaintiff must prove the
      existence of a duty, a breach of that duty and proximate cause. Thus,
      liability in negligence arises when a defendant owes a plaintiff a
      duty of care and is negligent in taking reasonable measures to
      prevent injury arising from conduct that is reasonably foreseeable.
      Here, there is no evidence from which a reasonable person might
      conclude that the defendants had either actual or constructive
      knowledge of the alleged defect or that the alleged defect existed at
      the time the product was sold."

      "Moreover, even were this court to permit a jury to infer that the
      chair was defective because it did not function as intended, if a
      defendant comes forward with any evidence that the accident was not
      necessarily attributable to a defect, the plaintiff must produce
      direct evidence of a defect."

      "A specimen label which was attached to some of the chaise lounges
      sold by CVS reads as follows:"


      WARNING
      DO NOT EXCEED THE MAXIMUM CHAIR
      WEIGHT LOAD OF 225 LBS AS THE CHAIR
      MAY COLLAPSE, WHICH MAY RESULT IN
      SERIOUS PERSONAL INJURY
      AND/OR PROPERTY DAMAGE

      MADE IN CHINA

      "At his deposition, the plaintiff testified that, after his accident,
      his wife told him about a warning label that was attached to the
      chaise and, significantly, the plaintiff admitted that the warning
      attached to the chaise reflected the weight limitation. Plaintiff's
      hospital record indicates that he weighed 245 pounds when he was
      treated for his injury and he, himself, admitted at his deposition
      that he weighed between 240 and 245 pounds at the time of his
      accident. Thus, it is clear that there was a warning on the chaise
      that plaintiff used that instructed that it was not to be used by
      anyone who weighed more than 225 pounds and it is equally clear that
      plaintiff's weight exceeded that limit. In light of this, defendants
      have established that the accident was not necessarily attributable
      to a defect, thereby shifting the burden to plaintiff to produce
      direct evidence of a defect, which plaintiff has utterly failed to
      do."

      "As for res ipsa loquitur, for the plaintiff to rely on that
      doctrine, the accident must (1) be of a kind that ordinarily does not
      occur in the absence of negligence, (2) be caused by an agency or
      instrumentality within the exclusive control of the defendant, and
      (3) not have been due to any voluntary action or contribution on the
      part of the plaintiff. Based on the record before the Court, the
      doctrine of res ipsa does not apply."

      "Accordingly, after a careful reading of the submissions herein, it
      is hereby ORDERED, that defendants, CVS and ATICO, are granted
      summary judgment and the action against them is dismissed."

      Larry Rogak
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