Free Initial Consultation (212) 858-0503

Tap Here To Call Us

Material Supplier Liability For Pump Jack Scaffold Failures In New York

January 15, 2013
Share

Our Westchester construction accident attorneys won a major decision in a products liability case against a warehouse which supplied defective lumber which failed while our clients were standing on it in the Westchester Supreme Court.

Our White Plains construction accident lawyers got past the defendants’ motion to dismiss several caused of action for warranty, negligence, failure to warn and strict liability. The Court held that since the defendant admitted that the size of the knots on the lumber made the lumber unfit for use as a vertical support and a vertical support in a pump jack scaffold application and that a pump jack scaffold application was a foreseeable use for the lumber that it sold.

Since the lumber that the warehouse sold to our clients was unfit for a use that the lumber is commonly used for, it was defective. Under New York’s Uniform Commercial Code [The U.C.C.] § 2-313, an express warranty is created by the seller when the seller makes any affirmation of fact to the buyer which relates to the goods and becomes part of the basis of the bargain. The implied warranty of merchantability is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection.The UCC’s concept of a “defective” product requires an inquiry only into whether the product in question was “fit for the ordinary purposes for which such goods are used and focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners. (UCC 2-314 [2] [c]) .In general, Merchantable can means of fair average quality and of such quality as passes without objection in the trade.The cause of action is one involving true “strict” liability, since recovery may be had upon a showing that the product was not minimally safe for its expected purpose–without regard to the feasibility of alternative designs or the manufacturer’s “reasonableness” in marketing it in that unsafe condition. To win an injured plaintiff must show that the product was not reasonably fit for [its] intended purpose and the inquiry focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners. In this case, our White Plains construction accident lawyers proved a violation by establishing that the lumber was graded as Standard and Better and the Defendants’ expert’s testimony established that the instant lumber was not even suitable for that usage, let alone, higher stress usages for which this type of lumber is customarily used.

Likewise our construction personal injury lawyers proved that there was a breach of an express warranty because the Defendant advertised that its goods were of a high quality. Also the injured party and his employer customarily ordered from that warehouse because of their representations that their products were of a high quality. The Westchester Supreme Court found that the defendants’ own testimony that the lumber, which was badly knotted, was not adequate for most of the applications to which this grade of wood was put establishes that the lumber supplied was not of high quality, accordingly it did not comply with the Defendants own representations of quality.

Our White Plains construction accident attorneys also provided that the warehouse was responsible for the pump jack scaffold collapse because they failed to warn that the lumber was not fit for certain usages. The New York Courts have always recognized that a retailer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known. The Westchester Supreme Court held that the lumber which the warehouse sold was defective due to a lack of warnings as to the inherent weakness in this piece of lumber and that the defendants’ own testimony establishes that it was foreseeable that the lumber which they sold the Plaintiffs would be used for a pump jack scaffold and that even though the knot rendered the subject lumber inadequate for any weight bearing usage (including a pump jack scaffold support), they failed to provide any warnings.

 
The Law Offices of Michael H. Joseph