DeCrosta v. Reynolds Construction & Supply Corp.

Herlihy, P. J. In October, 1969 defendant erected an in-ground swimming pool on plaintiffs property. The pool collapsed on March 15, 1973, and on January 7, 1974, plaintiff commenced an action for damages, alleging negligence as well as breach of warranty, express and implied. Defendant’s motion for summary judgment was granted on the ground that both causes of action were time-barred. No appeal was taken, wherefore the correctness of that determination is not before this court. In June of 1974, plaintiff commenced the present action setting forth similar facts and alleging that defendant was liable under the theory of strict products liability. Defendant again moved for summary judgment which again was granted, Special Term taking the view that plaintiff was estopped from maintaining the action by the prior judgment and that the action was barred by the applicable Statute of Limitations. While Special Term did not articulate its reasons for holding plaintiff to be estopped, it appears that it intended to hold that there is no difference in substance between an action based on strict products liability and an action based on breach of warranty. There is language to that effect in some of the cases. In Mendel v Pittsburgh Plate Glass Co. (25 NY2d 340, 345), a 4 to 3 majority in the Court of Appeals expressed its belief "that strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action.” (Emphasis supplied.) Subse [478] quently, the Court of Appeals adopted the theory of strict products liability in Codling v Paglia (32 NY2d 330), and more recently expounded on the evolution of the doctrine in Victor-son v Bock Laundry Mach. Co. (37 NY2d 395). In Victorson, the opinion for the court denied that Codling had created or discovered a new cause of action, but rather characterized that case as having extended a remedy and having "recognized in its modern guise a pre-existing theory of liability which had been evolving and maturing over the years, sometimes having been described by use of the phrase 'breach of implied warranty’.” (Victorson v Bock Laundry Mach. Co., supra, p 401.) In the present case, a determination of the motion for summary judgment requires an analysis of the complaint to ascertain whether or not it does state a distinct cause of action known as strict products liability and further a determination of whether or not the appropriate Statute of Limitations would be the three-year period running from the time when injury to the property occurred, as is provided in CPLR 214. In terms of legal analysis, the two questions raised are actually interdependent because the choice of the Statute of Limitations ordinarily will flow from the legal determination of whether the complaint in the present case states a cause of action in contract (warranties) or tort (strict products liability). Nevertheless, in the recent Victorson case the court after concluding that the cause of action was founded in tort went on to consider what would be an appropriate period of limitation. It appears established that a contractor who undertakes to construct additions to real property may be considered a manufacturer for purposes of strict products liability. (See Inman v Binghamton Housing Auth., 3 NY2d 137.) Accordingly, the defendant herein would fall within the class of people who may be held responsible upon a theory of strict products liability. In the recent Victorson case, the court used language which indicates that a customer might have a direct cause of action based upon strict products liability separate and distinct from the contract where he suffers personal injury or property damage as a result of defective goods purchased by him (Victorson v Bock Laundry Mach. Co., supra, pp 400-401). There is nothing therein, however, which [479] indicates that such a cause of action must necessarily exist in favor of the purchaser against the seller when the facts pleaded actually establish a cause of action which is classically that accruing to the parties to a commercial contract, which the Legislature of this State has already established as a matter of public policy is to be governed by the Uniform Commercial Code. Recently this court held that as to a manufacturer the concept of strict products liability gives rise to a warranty of indemnification, running in favor of immediate or intermediate purchasers as to injuries sustained by third parties, which is not limited to a period of limitations commencing to run at the time the contract was entered into or the goods were delivered (Infante v Montgomery Ward & Co., 49 AD2d 72). While the present complaint refers to hidden and unknown defects which arose in the construction of the swimming pool, it presents no factual allegations other than those which would constitute a cause of action based upon contract or common-law negligence as between this defendant and the plaintiff. While it is true that many people in a given factual situation might have causes of action based upon breach of warranty, negligence and strict products liability, this does not necessarily mean that all these causes of action would exist at the same time in the same person as against a manufacturer. In the Victorson case the court noted that it "appears that these two fields [contract—tort] have not been so categorically discrete as we are sometimes inclined to suppose.” (Victorson v Bock Laundry Mach. Co., supra, p 402.) In the recent case of Velez v Craine & Clark Lbr. Corp. (33 NY2d 117, 124-125) the court indicated that although strict products liability is considered a tortious cause of action, contract provisions might nevertheless restrict liability as between the parties to the contract. Notably, the majority opinion in the Victorson case emphasized throughout that in considering the elements of a cause of action in strict products liability and determining the applicable period of limitations, it was considering only the aspects of a claim made by a party not having contractual privity with the defendant. (See Victorson v Bock Laundry Mach. Co., supra, pp 401, 403; cf. concurring opinion per Judge Fuchsberg, p 404 et seq.J As noted hereinabove, this court has already taken the position in the Infante case that strict products liability may give rise to a cause of action for indemnification, which arises out of the relationship between [480] the parties but not necessarily by virtue of the fact that there was a contract between them. The record in the present case contains a contract which has therein express restrictions of liability as between the plaintiff and the defendant (cf. Velez v Craine & Clark Lbr. Corp., supra) and the record is sufficient to demonstrate that the plaintiff might have had a possible claim in strict products liability against the apparent prefabricator of the pool, Pacific Palm Pools. The fundamental problem is that as yet there has been no definitive pronouncement concerning the availability of strict products liability when suit is brought against a manufacturer with whom the plaintiff customer has personally dealt. The public policy which requires the imposition of liability upon a manufacturer as to hidden or latent defects which cause personal injury or property damage to persons not in privity to the contract between itself and its immediate customers (see, e.g., Codling v Paglia, 32 NY2d 330, 338-341, supra) does not as a matter of necessity or necessary implication lend itself to the protection of immediate customers. While it is certainly true that an immediate purchaser from a manufacturer will ordinarily not have the means or capability of assuring himself that there are no latent defects, such a purchaser is necessarily able to protect himself or herself through the terms of the contract and, as a matter of public policy, is given the advantage of implied warranties pursuant to the Uniform Commercial Code. As to negligence, the immediate purchaser again is protected against personal injury and property damage for a period of three years running from the time of injury and which statutory period is the same as that which applies to the theory of strict products liability. To find in favor of the plaintiff requires a determination by this court that as a matter of law a manufacturer guarantees forever to his immediate purchaser that the product is free from latent or hidden defects. Nevertheless, it is common knowledge that anything constructed by human beings is not perfect, and of all the possible persons having a cause of action for strict product liability the immediate purchaser is at all times in a position to exact whatever warranty he desires. While such an indefinite guarantee is both desirable and necessary insofar as indemnity claims might be concerned (cf. Infante v Montgomery Ward & Co., 49 AD2d 72, supra), there is no apparent rational basis for holding that strict [481] products liability in tort is a distinct cause of action from the contract as between the immediate purchaser and the manufacturer for the former’s property damage resulting from hidden or latent defects. For the foregoing reasons the plaintiff has not established a cause of action based upon strict products liability as against this defendant and the order appealed from should be affirmed, with costs. The order should be affirmed, with costs.