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Summary Judgment Practice Refined by a New Decision

By Michael Hoenig

The New York Court of Appeals, the highest court in that state, recently denied a summary judgment motion, based only on an attorney's affidavit, to the defendants in a product liability case. Yun Tung Chow v. Reckitt & Colman Inc., 2011 NY Slip Op 3888, 2011 N.Y. LEXIS 754 (N.Y. Ct. App. May 10, 2011). The plaintiff, a restaurant worker who read no English, suffered burns and lost sight in his left eye when a solution he created of 100% sodium hydroxide crystals and water splashed back from a clogged floor drain in the kitchen as he bent forward at the waist. The product, commonly known as lye, was sold under the brand name Lewis Red Devil Lye, which the court abbreviated for convenience as RDL. The product is sold in the form of dry crystals and is packaged and marketed as a product that clears clogged drains.

The RDL came in a bottle that had printed instructions and warnings. The user is told to “keep face away from can and drain at all times.” The label warned that splash-back and serious injury may occur if RDL is not used as directed. The label's section called “Directions for Use” said protective eyewear and rubber gloves are to be used when handling the products. The user is advised that one should “NEVER POUR LYE DIRECTLY FROM CONTAINER INTO DRAIN.” Instead, a plastic spoon is to be used to dispense the product. The user is advised to keep RDL away from contact with “aluminum utensils.” One tablespoon of the dry crystals is to be spooned into the clogged drain; then the user is to wait 30 minutes. After that interval, the user may check to see if the drain is clear by “adding several cups of COLD water.” If the drain is not clear, the label advises to try a repeat application only once. If the drain clog continues, a plumber should be consulted.

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