FILED: MONROE COUNTY CLERK 01/05/2018 04:43 PM INDEX NO.

E2018000130
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/05/2018

STATE OF NEW YORK

SUPREME COURT COUNTY OF MONROE

OWEN ATKISSON
72 Lapham Park

Webster, New York 14580

Plaintiff,
Plaintiff designates Monroe

vs. County as the place of trial

SUMMONS

VILLLAGE VAPE OR SMOKE, INC. Index No.:

5 West Main Street
Suite 2

Webster, New York 14580

Defendant.

TO THE ABOVE NAMED DEFENDANT:

YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve

a copy of your Answer on plaintiff's attorney within twenty (20) days after the service of this

Summons, exclusive of the day of service, or within thirty (30) days after service is complete if

this Summons is not personally delivered to you within the state of New York. In case of your

failure to appear or answer, judgment will be taken against you by default for the relief

demanded in the Complaint.

DATED: January 5, 2018

Rochester, New York WOODS OVIATT GILMAN LLP

By: s/: William G. Bauer, Esq. .

William G. Bauer, Esq.

Attorneys for Plaintiff

700 Crossroads Building
2 State Street

Rochester, New York 14614

585.987.2800

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STATE OF NEW YORK

SUPREME COURT COUNTY OF MONROE

OWEN ATKISSON

Plaintiff '
COMPLAINT

vs.
Index No.:

VILLLAGE VAPE OR SMOKE, INC.

Defendant.

(" Plaintiff'
Plaintiff, Owen Atkisson ("Plaintiff"), by and through his attorneys, Woods Oviatt

Gilman LLP, as and for his Complaint against Defendant, Village Vape or Smoke, Inc. ("VVS")

alleges as follows:

THE PARTIES

1. Plaintiff is a natural person residing at 72 Lapham Park, Webster, New York

14580.

2. Upon information and belief, Defendant VVS is a domestic corporation organized

and existing under the laws of the state of New York with its principal place of business located

at 5 West Main Street, Suite 2, Webster, New York 14580.

JURISDICTION AND VENUE

3. Plaintiff designates Monroe County as the place of this trial. The basis of venue

is Plaintiffs residence.

RELEVANT FACTS

4. Electronic cigarettes (e-cigarettes) are battery operated devices that deliver

nicotine through flavoring and other chemicals to users in the form of vapor instead of smoke.

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5. E-cigarettes commonly use lithium ion batteries, which have an inherent risk of

fire and explosion. Combining lithium ion batteries with a heating element, as done with

e-cigarettes, poses serious dangers and risks.

6. At all times relevant herein, the Defendant advertised, marketed, distributed, sold,

and/or supplied vapor devices and lithium ion batteries, including the subject battery to

consumers in the State of New York.

7. Plaintiff purchased a Smoke-E Mountain vaporizer and the LGHG2 lithium ion

("
batteries, including the subject battery, from Defendant VVS in August 2015 ("Subject

Vaporizer"
Vaporizer").

8. On or about October 16, 2015, while utilizing the Smoke-E Mountain vaporizer

and the lithium ion battery in accordance with proper commercial use, Plaintiff sustained severe

and permanent burns as a direct result of the Subject Vaporizer exploding.

9. Plaintiff was unaware of the danger and risk associated with the vaporizer and

batteries, including the risk of explosion and/or fire.

10. The explosion, and Plaintiffs resulting injuries, was directly caused by

Defendant's unsafe and defective vaporizer and battery. As such, Defendant is liable for

Plaintiffs injuries due to its negligence and reckless conduct.

AS AND FOR THE FIRST CAUSE OF ACTION

FOR STRICT LIABILITY

11. Plaintiff repeats and realleges the proceeding allegations as though fully set forth

herein.

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12. At all relevant times herein, Defendant marketed, distributed, sold, supplied,

and/or introduced into international and/or interstate commerce the subject product purchased

and used by Plaintiff.

13. On or about October 16, 2015, Plaintiff was using the Subject Vaporizer in a

reasonably foreseeable and intended manner when the Subject Vaporizer suddenly exploded

causing severe and painful burns and injuries to Plaintiff.

14. Defendant advertised and sold the Subject Vaporizer with the defects that made

the Subject Vaporizer dangerous, hazardous and unsafe for its intended and reasonably

foreseeable use.

15. Specifically, there was a risk of the Subject Vaporizer exploding and causing fire

during normal use, causing serious injury to the consumers.

16. The Subject Vaporizer was defective when it was placed into the stream of

commerce by Defendant.

17. Upon information and belief, Defendant had actual and/or constructive knowledge

of the risks inherent with the Subject Vaporizer at the time of the sale to Plaintiff and knew that

it could explode, and cause the injuries that Plaintiff suffered.

18. Defendant knew or should have known that consumers relied in good faith on

their reputation, as Plaintiff did, and trusted the Subject Vaporizer to function as advertised.

19. The inherent risks and dangers in using the Subject Vaporizer in its intended or

reasonably foreseeable way presented a substantial danger to Plaintiff.

20. An ordinary consumer, such as Plaintiff, would not have recognized the potential

risks and dangers inherent in the use of the Subject Vaporizer.

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21. Defendant failed to warn of the dangers involved with the reasonably foreseeable

use of the Subject Vaporizer, including but not limited to the risk of explosion and fire.

22. Defendant's failure to warn of the risks involved with the use of the Subject

Vaporizer and to provide proper instructions for its safe use was a substantial factor in causing

Plaintiffs severe injuries and the damages that resulted therefrom.

23. As a direct result of the defective Subject Vaporizer, and Defendant's failure to

warn, Plaintiff suffered severe personal injuries and damages as alleged herein, including but not

limited to, physical, emotional and mental pain, permanent scarring, past and future medical

bills, loss of past and future wages, and diminished earning capacity.

24. Upon information and belief, Defendant's conduct was willful and done with

deliberate disregard to Plaintiffs and other consumers rights and, as such, represents an

intentional misrepresentation, deceit, or concealment of material facts known to Defendant,

which includes but is not limited to, knowledge that the lithium ion battery had a substantial risk

of exploding or catching fire and failing to implement a safer alternative.

25. As such, Defendant is strictly liable for the injuries and damages suffered by

Plaintiff.

AS AND FOR A SECOND CAUSE OF ACTION

FOR BREACH OF NEW YORK STATE DUTY TO WARN

26. Plaintiff repeats and realleges the proceeding allegations as though fully set forth

herein.

27. At all times relevant herein, Defendant marketed, distributed, sold, supplied and

introduced into international and/or interstate commerce the Subject Vaporizer.

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28. At all times relevant herein, Defendant advertised, marketed, distributed, sold,

and supplied the Subject Vaporizer.

29. At all times relevant herein, Defendant owed a duty to Plaintiff and the general

consumer at large to warn about the risks of the defective Subject Vaporizer as they knew, or

should have known, that the defective Subject Vaporizer carried the serious risk of harm when

used for its reasonably foreseeable purpose.

30. Defendant breached its duty to warn Plaintiff and the general public at large that

the Subject Vaporizer was dangerous, had a risk of explosion and/or fire, and could cause serious

bodily injury to the user of the product.

31. Defendant did not warn Plaintiff of said risks, either verbally or in writing.

32. Plaintiff was unaware of the danger and risk associated with the defective Subject

Vaporizer, including but not limited to, its propensity to explode and/or ignite.

33. Defendant failed to exercise the reasonable care, skill, and diligence of an

ordinary prudent supplier or retailer in warning consumers of the risks of the Subject Vaporizer

to explode and/or ignite when the product was being used for its intended purpose.

34. Regardless of the dangers that Defendant knew, or should have known, Defendant

continued to market, and sell the Subject Vaporizer without any safety warnings.

35. At the time that the Subject Vaporizer was placed in the stream of commerce,

Defendant knew, or should have known, that a reasonable consumer, such as Plaintiff, would not

know of the dangers that the Subject Vaporizer presented, nor would they have known of the

potential injuries that could result from the normal use of the Subject Vaporizer.

36. Plaintiffs injuries are a direct and proximate result of Defendant's breach of their

duty to warn Plaintiff.

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37. As a result, Plaintiff has been caused to suffer serious injuries, including but not

limited to, pain, suffering and emotional distress, permanent scarring, as well as loss of wages,

loss of earning capacity, medical expenses, and other damages.

AS AND FOR A THIRD CAUSE OF ACTION

FOR BREACH OF IMPLIED WARRANTY

38. Plaintiff repeats and realleges the proceeding allegations as though fully set forth

herein.

39. At all times relevant herein, Defendant marketed, distributed, sold, supplied and

introduced into international and/or interstate commerce the Subject Vaporizer.

40. In selling the Subject Vaporizer, Defendant impliedly warranted that said product

was reasonably fit for the ordinary purposes for which they were used.

41. However, this implied warranty was breached, as the Subject Vaporizer was not

reasonably safe or fit for the ordinary purposes for which it was used, as it exploded, overheated,

malfunctioned, and/or ignited while being used in a manner in which it was intended and

advertised to be used in.

42. As such, Defendant breached its implied warranty of fitness.

43. As a direct and proximate result of Defendant's breach, Plaintiff was caused to

suffer injuries and damages, including but not limited to, emotional and mental anguish, pain and

suffering, permanent scarring, loss of wages, loss of earning capacity, and medical expenses.

AS AND FOR A FOURTH CAUSE OF ACTION

FOR PUNITIVE DAMAGES

44. Plaintiff repeats and realleges the proceeding allegations as though fully set forth

herein.

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45. At all times relevant herein, Defendant marketed, distributed, sold, supplied and

introduced into international and/or interstate commerce the Subject Vaporizer.

46. Upon information and belief, Defendant's conduct, acts, and omissions were

reckless and intentional and done with a conscious disregard for the rights and safety of Plaintiff

and reasonable consumers of the Subject Vaporizer.

47. Upon information and belief, prior to placing the Subject Vaporizer into the

stream of commerce, Defendant knew, or should have known, of the hazards of the lithium ion

battery and the likelihood of it to explode, short circuit, overheat, and/or ignite, causing harm to

the user.

48. Upon information and belief, despite this knowledge, Defendant acted recklessly,

knowingly, and/or intentionally to not remedy the defects.

49. Upon information and belief, Defendant's conduct shows a conscious and

intentional disregard for the rights and safety of Plaintiff and other reasonable consumers.

50. As such, Plaintiff is entitled to punitive damages against Defendant.

WHEREFORE, Plaintiff demands judgment against Defendant as follows:

a. On the First Cause of Action for strict liability, damages for pain and

suffering, mental and emotional distress, permanent scarring, loss of

earnings, and medical expenses in an amount to be determined at trial;

b. On the Second Cause of Action for breach of New York State duty to

warn, damages for pain and suffering, mental and emotional distress,

permanent scarring, loss of earnings, and medical expenses in an amount

to be determined at trial;

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c. On the Third Cause of Action for breach of implied warranty, damages for

pain and suffering, mental and emotional distress, permanent scarring, loss

of earnings, and medical expenses in an amount to be determined at trial;

d. On the Fourth Cause of Action for punitive damages in an amount to be

determined at trial;

e. Plaintiffs costs and disbursements; and

f. For such other additional relief as the Court deems just and proper.

DATED: January 5, 2018

WOODS OVIATT GILMAN LLP

By: s/: William G. Bauer, Esq. .

William G. Bauer, Esq.
Attorneys for Plaintiff
700 Crossroads Building
2 State Street

Rochester, New York 14614

585.987.2800

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