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SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU

Present: HON. ZELDA JONAS Justice

TRIAL/LAS PART 25 LORRAINE FINAZZO, As Administratrix of the Estate of WAYNE VINCENT McLOUGHLIN, Deceased,

Plaintiff, Index #4422/96

- against - Sequence #: 7 Motion Date: January 7,2003 AMERICAN HONDA MOTOR COMPANY, INC., HONDA NORTH AMERICA, INC., HONDA MOTOR CO., LTD., LIBERTY CHEVROLET, INC. d/b/a BRONX HONDA, and 2100 MOTOR SALES, INC., d/b/a BRONX HONDA, now known as LIBERTY CHEVROLET, INC. d/b/a BRONX HONDA,

Defendants.

Order to Show Cause & Affirmations ...... 1 . 3 Affirmation in Opposition ...... 4 Reply Affirmation ...... 5 Memorandum of Law ...... 6

Motion by defendants, American Honda Motor Co., Inc. s/h/a American Honda

Motor Company, Inc. and Liberty Chevrolet, Inc. d/b/a Bronx Honda and 2100 Motor

Sales, Inc. d/b/a Bronx Honda (hereafter Honda) pursuant to CPLR 3212 for summary

judgment dismissing the complaint is denied, except for the fraud and breach of

warranty causes of action which are dismissed. As the parties have agreed that this

motion is timely and that the expert witness disclosure is timely, the remainder of

defendant’s motion is denied as moot. This action arises out of an automobile fire in a 1987 CRX which

took place on February 19, 1994 at approximately551 a.m. Plaintiffs decedent

started the vehicle, which was parked outside his residence at 53 Ballard Avenue,

Valley Stream, New York, at approximately 4:00 to4:30 a.m. to move it into the

driveway. He had been out drinking from 8:00 p.m. until 3:30 a.m., and, after turning

on the ignition, he passed out. The vehicle was idling until approximately5:51 a.m.

when the caught fire, broke through the fire wall, and spread to the passenger compartment. Fire department personnel, after extinguishing the blaze, found plaintiffs decedent in the vehicle “sitting in the front driver ’s seat (lyingaccross [sic] the passenger seat) ” (Fire Marshal report, Exhibit H).

On February 20, 1996, plaintiff, as administratrix of the decedent, Wayne

Vincent McLaughlin (McLaughlin), commenced this action for strict products liability, negligent manufacture, negligence, fraud and misrepresentation, breach of express and implied warranty, and wrongful death. The primary basis for the claim is that the

Honda CRX suffered from a design defect. Plaintiff contends that inside the engine compartment the and the catalytic converter were placed too close to the radiator and that the radiator coolant self-ignited when it escaped and came in contact with the exhaust manifold and extremely hot catalytic converter.

Honda now seeks summary judgment dismissing the complaint submitting expert affidavit testimony that the proximate cause of the death of plaintiffs decedent was his intoxication and that the fire would not have occurred if he had not passed out behind

-2- the wheel with the engine running and that he would have been able to observe engine overheating as well as fire or would have been able to exit the vehicle had he not passed out from intoxication.

Honda also offers evidence from mechanical engineer, James H. Somerset, that the 1987 Honda CRX was a reasonably safe design. Somerset avers that there was no design or manufacturing defect regarding the placement of the exhaust manifold, catalytic converter, and radiator; that the electrical systems were properly designed; and that Honda ’s warnings were adequate. Dr. Somerset conducted his own testing of an exemplar 1987 Honda Civic CRX and avers that such testing demonstrated that the vehicle, if in reasonably good condition, can be left running without a fire starting for at least the amount of time that plaintiffs decedent was in the vehicle before the fire started in this case. His tests further establish that the radiator coolant in a 1987 CRX in reasonably good condition would not reach a boil during the time that the decedent was in the vehicle.

Honda also offers the affidavit testimony of mechanical engineer/fire analyst Paul

D. Beachamp, who opines that the vehicle design, particularly from the view of fire safety, was reasonably safe. He contends that the design of the vehicle provides signs to the driver operating the vehicle that would allow the driver more than adequate time to exit the vehicle uninjured.

Honda contends that, based upon the above, the product was reasonably safe and therefore, summary judgment is appropriate,citing Voss v. Black & Decker Mf’g (59

-3- N.Y.2d 102), and contends that the burden has shifted, and plaintiff must submit

sufficient admissible evidence to raise a triable issue. Honda additionally contends that

plaintiffs act of starting the vehicle while intoxicated is a criminal offense, and thus his

injuries arise out of the commission of a crime, and he cannot recover.

Addressing Honda ’s last contention first, it is initially noted that the allegation of

crime here is a highly technical one, as it is undisputed thatMcLaughlin did not drive

the vehicle and intended only to move it out of the street and into his driveway, due to a

local ordinance which prohibits parking on the roadway during certain hours. More

importantly the “Barker/Manning rule ” prohibiting recovery when injury is sustained

during the commission of a crime, which rule is based “on the sound premise that a

plaintiff cannot rely upon an illegal act . . . to define the defendant ’s duty ” does not

apply where design defect and intoxication both operate as causal factors(Alami v.

Volkswagen of America, 97 N.Y.2d 28 1, 287). In Alami, the intoxicated plaintiff struck

a utility pole in a single-vehicle accident. Holding that the Barker/Manning rule did not

apply, the Court of Appeals stated,“[i]f Volkswagen did defectively design the Jetta. . .

it breached a duty to any driver of a Jetta involved in a crash regardless of the initial

cause . . . . Plaintiff. . . asks only that Volkswagen honor its well-recognized duty to

produce a product that does not unreasonably enhance or aggravate a user ’s injuries ”

(Alarm! v. Volkswagen of America, supra; see also, Gaither v. City of New York, _

A.D.2d _ , 751 N.Y.S.2d 368,369 [recovery may be had notwithstanding intoxication for a defect “violative of a duty owed to the general public lawfully engaged ”). Here,

-4- McLaughlin did not drive the vehicle while intoxicated, or crash it, indeed he walked home at 3:30 a.m. from the bar where he had been drinking. The evidence indicates that the CRX spontaneously caught fire whileMcLaughlin slept inside with the motor running. While his intoxication was a proximate cause of his injuries, it cannot be said as a matter of law that his intoxication was the sole cause of his injuries if the vehicle was defectively designed (see, Smith v. State, 191 Misc.2d 553,568 [Court of

Claims][ “the claimant ’s decedent ’s criminal act of driving while intoxicated was not the only cause of his accident. . . his reflexes were slowed, his judgment impaired, which combined with the state ’s negligent construction and maintenance of its guide rail system, caused his death ”]). As indicated below, plaintiff has raised a sufficient issue of fact with regard to defective design, and thus defective design cannot be ruled out as a proximate cause of the death as a matter of law.

Turning to plaintiffs evidence with respect to the alleged design defect, plaintiff offers the affidavit of Peter Donath, whose qualifications are in the field of automotive repair and mechanics over a forty-year period. Donath has a bachelor ’s degree in education in the automotive field, has owned and managed an auto repair facility, has taught at BOCES, and is licensed in secondary education and, for a twenty-year period was affiliated with Inter-City Testing& Consulting Corp., which involved analysis of the workings of automobiles sustaining engine damage resulting from fire and tracing of engine compartment fires. He was involved in the study and analysis of numerous cases of engine coolant breakdown and the results thereof within the engine compartment.

-5- Donath observed and inspected theMcLaughlin vehicle and observed the bum patterns of the fire “as it affected the vehicle.He ” “studied and analyzed the fire ’s development. ”He photographed theMcLaughlin vehicle and studied and photographed a Honda of the same make and model, studied and reviewed the depositions of witnesses and parties, and reviewed the Fire Marshall ’s report. He states:

“The operator. . . remained in the vehicle while the vehicle was running for an extended amount of time at which time the vehicle reached in excess of its normal operating range of temperature. The cooling system failed to function properly and an overheating and over-pressure system existed at which time mixture was expelled from the cooling system and on to the exhaust manifold and catalytic converter which is located in the area of the radiator. Antifreeze/engine coolant/ was the accelerant for the fire. Based upon the bum patterns of the fire and the fact that the state of the vehicle ’s radiator was in total disassembly with its solder joints being separated, was not the accelerant for the subject vehicle ’s engine compartment fire. ”

Donath offers his opinion that the antifreeze vapor introduced into the engine compartment onto the manifold and catalytic converter “autoignited ” due to the extreme heat of the converter and that the flame continuously fed by the antifreeze vapor being expelled from the cooling system ignited other components of the under the hood and caused the whole vehicle to be consumed. He avers that the “location of the catalytic converter and the exhaust manifold in the proximity of the cooling system and its radiator was an inherent design defect . . . .” He avers that design known in the automotive industry at the time of the design and manufacture of the subject vehicle would have placed the catalytic converter and exhaust manifold “in a different part of the subject vehicle. ”If the converter and manifold were removed from proximity to the

-6- radiator, the antifreeze mixture would not have come into contact with any substance

which could have caused it to ignite.

Donath also states that other vehicles of the same type did not have the catalytic

converter and exhaust manifold located on the forward side of the engine. He

concludes, “the positioning and location of the catalytic converter and exhaust manifold

to the rear of the engine . . . was not novel for the 1987 model year and, indeed, was

standard procedure for prior model years. ”

The presentation of plaintiffs expert ’s testimony establishes a question of fact

regarding a design defect, and the complaint will not be dismissed. It is the role of a

jury to “. . . ‘determine the weight to be given to the testimony of the several experts . . .

on behalf of the conflicting parties” ’(Oberman v. Alexander ’s Rent-A-Car, 56 A.D.2d

814,815, app denied 42 N.Y.2d 806).

In reply, Honda avers that plaintiffs expert has “no practical experience or

personal knowledge in the design ” of automobiles and has offered no “foundational

facts. ” To the contrary, Donath has offered a basis in practical experience in his

association with Inter-City Testing& Consulting Corp. in assessing engine damage and

as a mechanic and teacher with knowledge of cooling and exhaust systems. In any

event, “all that is required is that the testifying expert possess the requisite skill,

training, education, knowledge and experience from which it can be assumed that the

opinion rendered is reliable(Enu ” v. Sobol, 208 AD2d 1123, 1124). Donath has provided a sufficient foundational fact alleging that the placement of the catalytic

-7- converter near the radiator was “a deviation from industry standards ” Cervone(see, v.

TuzzoZo, 291 A.D.2d 426,427; Martinez v. Roberts Consol. Indust., 299 A.D.2d 399).

Moreover, insofar as Honda indicates that plaintiff has not sufficiently indicated a

design alternative, plaintiff has adequately indicated that in other vehicles the catalytic converter was placed toward the rear of the engine compartment or under the passenger compartment.

The Court also rejects Honda ’s contention that plaintiff must exclude all other possible causes of the fire in order to make out a prima facie case. When a product has not performed as intended, a plaintiff must exclude all causes of the accident not attributable to defendant only where no particular defect is established(Halloran v.

Virginia Chem., 41 N.Y.2d 386, 387;Sideris v. Simon A. Rented Serv., 254 A.D.2d 408,

409 [If a plaintiff proves that a product has not performed as intended and eliminates all causes of the accident not attributable to the defendant, a fact-finder mayinfer that the product was defective]). Here plaintiff is not relying on an inference of a defect, as this is not a case “where no particular defect is established(Halloran ” v. Virginia Chem., supra).

The causes of action for fraud and breach of warranty are dismissed, as plaintiff has offered no opposition to Honda ’s application to dismiss. In any event, the fraud cause of action “is merely another aspect of the negligence and strict products liability causes of action ”(Quinn v. Hoover & Strong, 96 A.D.2d 1145, 1146).

-8- ‘, This matter is hereby restored to the trial calendar at the Calendar Control Part to be referred to the Hon. Zelda Jonas for trial on May 6, 2003 at9:30 a.m. The “stay ” on the proceeding is lifted.

J.S.C.

-9- .,