Defendants Coast Distribution and Land ‘N’ Sea Midwest, Inc., distributors of a Wego Kite Tube which injured plaintiff, are not entitled to summary judgment even though it “was impossible to identify which one of them distributed to Cargo [the seller], the Wego Kite Tube plaintiff purchased:

The doctrine of alternative liability is “available in some personal injury cases to permit recovery where the precise identification of a wrongdoer is impossible.”

Under that doctrine, where the conduct of two or more defendants is tortious, and “‘it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one,” ’ the burden is placed on those defendants to prove that they did not cause the harm.  If the defendants cannot meet that burden, they are jointly and severally liable.

* * *

It is undisputed that Coast and Land placed into the stream of commerce a product that is alleged to be defective.  If it is established at trial that the Wego Kite Tube was defective, then Coast and Land, as distributors of that product, will have acted tortiously “regardless of privity, foreseeability, or the exercise of due care.”

Silver v. Sportsstuff, ___ A.D.3d ___, ___ N.Y.S.3d ___ 2015 WL 4460218 (2d Dept. 2015).


Steven B. Prystowsky

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