ACCIDENT VICTIM'S PERSONAL INJURY BURN CASE ALLOWED TO PROCEED; SHE CLAIMS THAT BACARDI "151" RUM IS A DEFECTIVE PRODUCT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Sclafani v. Brother Jimmy's BBQ, Inc.

Date: Oct. 13, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury attorney)

Comment: This is a weird case. Plaintiff was burned and injured in an accident when a bartender lit on fire Bacardi rum on top of a bar. The appeals court denies the defense summary judgment motion and lets go forward plaintiff's "products liability" claim -- that the rum was a defective product.

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FORKLIFT OPERATOR HURT WHEN BRAKES FAIL; HIS PRODUCTS LIABILITY CLAIMS AGAINST MANUFACTURER AND MAINTENANCE COMPANY DISMISSED (Posted by Brooklyn injury attorney Gary E. Rosenberg on Oct 29, 2011)

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Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered May 27, 2010, which, insofar as appealed from, denied the motion of the Bacardi defendants (Bacardi) pursuant to CPLR 3211(a)(7) to dismiss the complaint as against them, unanimously affirmed, with costs.

Plaintiff patron alleges that she was injured when, while at the bar at defendants‑respondents' restaurant, the bartender, in a pyrotechnic display, poured Bacardi's high‑alcohol content rum onto the surface of the bar and ignited it. At that point, the flame ignited into the bottle and the flaming contents shot out of the mouth of the bottle. As a result, plaintiff sustained severe burns.

The motion court properly concluded that under the circumstances plaintiff has viable claims for both negligence and strict liability based on defective design. Bacardi has submitted no evidence substantively contradicting the facts set forth in the complaint or in the affidavits of plaintiff's experts (see generally Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977]; see also Yun Tung Chow v. Reckitt & Colman, Inc., 17 NY3d 29, 33-34 [2010] ). Although Bacardi included warning labels on the bottle of Bacardi 151 and installed a removable flame arrester, it did so while actively promoting the very pyrotechnic uses that caused plaintiff's injuries.

The court also properly declined to dismiss plaintiff's request for punitive damages. Contrary to Bacardi's contention, punitive damages have been "sanctioned under New York law in actions based on negligence and strict liability" (see Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 204 [1990] [internal citations omitted]).

We have considered Bacardi's remaining arguments, including the challenges to certain statements made by plaintiff's experts, and find them unavailing.

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