WITHERSPOON v. KING ZAK INDUSTRIES INC LLC 11 12 BCP LLC LLC LLC LLC LLC (2025)

Upon the foregoing documents, it is ordered that this motion is denied for the reasons set forth below.

In this products liability action, plaintiff Angela Witherspoon alleges that she sustained severe burns to a substantial portion of her body when a canister containing blue methanol gel, commonly referred to as a sterno, “exploded” as she was attempting to light it. Plaintiff commenced this action against defendants Sterno Products, LLC, “Sterno”, Solakol, Inc., d/b/a Sterno Laboratories, and The Sterno Group, LLC (collectively the Sterno defendants) as the alleged manufacturer of the sterno at issue, defendants King Zak Industries, Inc., d/b/a “Party Dimensions” (King Zak), Amazing Savings of Lawrence, LLC d/b/a “Amazing Savings” (Amazing Savings), and Super Deal Stores, Inc., d/b/a “Super Deal 11” and d/b/a “Super Deal 12” (Super Deal) as the alleged distributors of the sterno at issue. King Zak, the Sterno defendants, and Amazing Savings each separately answered the amended complaint and asserted cross-claims for common-law indemnification and contribution against Super Deal. As is relevant here, the plaintiff seeks to hold Super Deal strictly liable as a distributor of the allegedly defective sterno.

Super Deal now moves for summary judgment dismissing the complaint and all cross-claims asserted against it. In support of its motion, Super Deal submits, among other things, the transcripts from the depositions of the plaintiff, Banton, Daniel Levy, Super Deal's president, and Jarrod Lee Kuhn, a witness for the Sterno defendants, as well as photos of the sternos used on the date of the plaintiff's accident.

In explaining how her accident occurred, the plaintiff testified to the following. She was a member of the Love Faith Fellowship Healing & Deliverance Ministry (the ministry). On July 30, 2017, the date of her accident, there was a volunteer function at the ministry that involved serving food to individuals from a local homeless shelter. The accident occurred while the volunteers, including the plaintiff, were setting up for the event. To set up each of the serving stations, another volunteer would open the top of the sterno and pass it to the plaintiff, who would place the can into the designated space in each of the wire chafing dishes that were set up for the event. The plaintiff would then use a grill lighter to light each sterno. There were twelve sternos available, and the first eleven were ignited without incident. However, when the plaintiff lit the twelfth sterno, it immediately “popped, the liquid exploded on me” causing hot methanol gel to splash onto her face, neck, and chest.

Non-party witness Kirk Banton, a pastor for the ministry, testified to the following. When the ministry would host events, he would purchase the necessary supplies, which included sternos. In the months leading up to the plaintiff's accident, he purchased sternos for the ministry twice. The first purchase was made in January 2017 at the Super Deal store in Rosedale. The second purchase was made in July 2017 at Amazing Savings, several days prior to the date of the plaintiff's accident. Although the sternos purchased in January 2017 were for a separate event, several sternos went unused and were ultimately stored in the pantry. On the date of the plaintiff's accident, Banton gathered all the sternos that he had and brought them outside to set up for the event. However, he did not witness the accident and not know whether the sterno that caused the plaintiff's accident was purchased in January 2017 or July 2017.

Super Deal asserts that it is entitled to summary judgment dismissing the complaint because the subject sterno was not purchased from its store. Super Deal notes that items purchased from its store would have a price sticker with “Super Deal” printed on it but asserts that the photos demonstrate that no such sticker was present on the subject sterno. Super Deal further asserts that Kuhn's testimony demonstrates that the plaintiff's accident was the first of its kind. Thus, even if Super Deal could be held liable as a distributor of the sterno at issue, these circumstances establish that it had no duty to provide warnings to the plaintiff or any other potential purchaser. For these reasons, Super Deal also argues that the various cross-claims for common-law indemnification and contribution asserted against it should be dismissed.

On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]). Once the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the opposing party, who “must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). When considering a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party (see Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]). A moving party's failure to meet its prima facie burden requires denial of the motion, regardless of the sufficiency of the papers submitted in opposition (see Winegrad v City of New York, 64 NY2d 851, 853 [1985]).

As an initial matter, Super Deal's submissions are insufficient to affirmatively demonstrate, prima facie, that Super Deal was outside of the distribution chain for the subject sterno. “A party injured as a result of a defective product may seek damages against the product manufacturer or others in the chain of distribution if the defect was a substantial factor in causing the injury” (LaScala v QVC, 201 AD3d 798, 798 [2d Dept 2022]). “Liability, however, may not be imposed upon a party that is outside the manufacturing, selling, or distribution chain” (Tyminskyy v Sand Man Bldg. Materials, Inc., 168 AD3d 1118, 1119 [2d Dept 2019]). “The identity of the manufacturer of a defective product may be established by circumstantial evidence” (Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 601 [1996]). The circumstantial evidence of the identity of the manufacturer or supplier of a defective product causing personal injury must establish, however, ‘that it is reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product’ ” (Tyminskyy, 168 AD3d at 1119, quoting Healey, 87 NY2d at 601-602).

Here, when describing the inventory at Super Deals, Levy testified that, because the store does not utilize an electronic pricing system, all products are priced and labeled by hand using a pricing gun which puts a “Super Deal” sticker on the item that sets forth the price of said item. The sticker would be placed either on the top of the item or on one of the sides. During his deposition, Levy reviewed photos of the sterno at issue and testified that he did not believe that it was sold by Super Deal. Levy observed that the photos did not depict a “Super Deal” sticker on the subject sterno and noted that he also did not see any remnants of adhesive residue from said sticker on the sterno, which he indicated would be present if a “Super Deal” sticker had been removed from the subject sterno. Critically, however, when assessed collectively, the various photos of subject sterno do not depict a complete view of its side. Therefore, when viewed in the light most favorable to the plaintiff, these photos do not definitively establish that the subject sterno did not have a “Super Deal” sticker on it at any time.

Super Deal's remaining arguments are also insufficient to establish prima facie entitlement to summary judgment. Super Deal relies on Kuhn's testimony that he has “no idea” how the plaintiff's accident could have occurred and never heard of such an accident happening in the past, effectively arguing that the plaintiff's accident was not foreseeable. However, where, as here, a claim is grounded in strict products liability, “a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product ‘regardless of privity, foreseeability or the exercise of due care’ ” (Godoy v Abamaster of Miami, Inc., 302 AD2d 57, 60 [2d Dept 2003], quoting Gebo v Black Clawson Co., 92 NY2d 387, 392 [1998]; see Finerty v Abex Corp., 27 NY3d 236, 241 [2016]). “A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product” (Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]). Here, the plaintiff's claim is based on all three theories of liability, and Super Deal's argument fails to specifically address each of these theories.

Finally, Super Deal's contention that it is entitled to summary judgment dismissing the cross-claims asserted against it is predicated entirely on its argument that the complaint should be dismissed insofar as asserted against it. Thus, for the same reasons as stated previously, Super Deal failed to meet its prima facie burden on the cross-claims. Under these circumstances, the parties’ opposition papers need not be addressed (see Winegrad, 64 NY2d at 853).

Accordingly, it is

ORDERED that defendant Super Deal's motion for summary judgment is denied; and it is further

ORDERED that defendant Amazing Savings shall serve a copy of the Decision and Order with Notice of Entry upon twenty (20) days of the date of entry.

This constitutes the Decision and Order of the Court.

Karen Lin, J.