Cooley v. Carter-Wallace Inc.

Moule, J. (dissenting).

While the adequacy of a warning is usually a question of fact (see, e.g., Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55), the written warning on the bottle of “Nair” purchased by plaintiffs was “adequate by any standard” Wolfgruber v Upjohn Co., 72 AD2d 59, 62, affd 52 NY2d 768) and, hence, I would affirm the granting of summary judgment in favor of defendant.

The warning at issue clearly and unambiguously stated that the product was not to be used in genital areas. Plaintiffs admitted that they read the warning and even stated that they became concerned over the plaintiff husband’s intention to apply it to the proscribed area. Nonetheless, despite this clear proscription, they ultimately applied the product to his genitals. The warning “clearly alertfed] the user to avoid certain uses of the product which would appear to be normal and reasonable” (Lancaster Silo & Block Co. v Northern Propane Gas Co., supra, p 65); plaintiffs simply chose to ignore it. “Where there are admissions, as here, which remove any fact issue, no warrant exists to deny defendant’s motion for summary judgment” (Wolfgruber v Upjohn Co., supra, p 63).

Finally, the majority’s reliance on Wolfgruber (supra) for the proposition that defendant’s warning was insufficient as a matter of law because it failed to warn of the specific danger involved is misplaced. Even if Wolfgruber stands for the proposition that a manufacturer’s duty to warn may only be satisfied by disclosing the potential ill effects associated with the intended and directed use of the product, plaintiffs’ failure to use the product as intended and directed precludes recovery under this theory. To hold otherwise would impose an unreasonable burden on manufacturers by requiring them to enumerate every anticipated injury which could result from misuse of their product.

Hancock, Jr., J. P., Doerr and Denman, JJ., concur with Green, J.; Moule, J., dissents and votes to affirm in an opinion.

Order reversed, with costs, and motion denied.