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Laird, Mercure, Hansen Obtain Reversal on Flammable Fabrics Appeal Against Skirt Manufacturer


The plaintiff sued for personal injuries after she was badly burned when the dress and skirt she was wearing caught fire while she was standing near a propane heater.  The plaintiff alleged that the skirt, dress, and heater all contained manufacturing defects.  The manufacturer of the heater retained Edward Laird, Thomas Mercure, and Jonathan Hansen as appellate counsel after the plaintiff’s claim for design defect against the seller of the skirt was dismissed.  The skirt seller had been granted summary judgment on the basis that it was not the seller as a matter of law.   

On appeal to the Appellate Division, Third Department, Laird, Mercure, and Hansen successfully argued that the seller’s reliance on the plaintiff’s inability to remember where the skirt was purchased was insufficient to meet its burden on summary judgment of coming forward with affirmative evidence to establish that it did not sell the skirt.  As the seller maintained no records to support its position, and the manufacturer’s database records were held to be inadequate, the seller could not establish as a matter of law that it was not the seller of the skirt.    

Laird, Mercure, and Hansen also successfully argued that questions of fact existed as to whether the skirt was defectively designed by highlighting expert proof which demonstrated that the skirt was not reasonably safe for consumers because it ignited too quickly and burned too readily and that it did not contain a warning label.

Finally, Laird, Mercure, and Hansen argued that the heater manufacturer had standing to prosecute an appeal against the skirt seller, despite not maintaining a cross-claim against it, by virtue of having raised Article 16 as an affirmative defense in its Answer.  Thus, although the heater manufacturer did not have a right of contribution against the skirt seller, it did have the right to an apportionment of liability at trial as and between the skirt seller and itself. 

As a result, the Appellate Division reversed the Order of summary judgment in favor of the skirt retailer, allowing Carter Conboy’s client to pursue an allocation of fault against the skirt retailer at trial.