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 Honda Civic 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 engine 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 exhaust manifold 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 antifreeze 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/ethylene glycol 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, gasoline 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 car 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 .