Miller, J., concurs in part and dissents in part and votes to affirm the order appealed from, with the following memorandum: I cannot concur in the majority’s conclusion that the danger of combustion in this case was so obvious as to negate Arvin’s duty to warn.
The plaintiff’s cause of action against Arvin sounds in strict product liability. Generally, "A manufacturer or other seller is subject to liability for failure either to warn or adequately to warn about a risk or hazard inherent in the way a product is designed that is related to the intended uses as well as the reasonably foreseeable uses that may be made of the product it sells” (Prosser and Keeton, Torts § 96, at 685 [5th ed]). However, there is no duty to warn of obvious dangers. The term "obvious danger” has been defined to mean "a condition that would ordinarily be seen and the danger of which would ordinarily be appreciated by those who would be expected to use the product” (Prosser and Keeton, Torts § 96, at 686-687; see, Caris v Mele, 134 AD2d 475, 476).
In the case at bar, I find that the exposure of gasoline-soaked clothing to space heaters does not constitute an "obvious danger”. Those who generally use space heaters do not necessarily appreciate the potential danger of combustion resulting from the exposure of the heater to gas fumes in a confined area. In this case, two space heaters were the sole source of heat in a relatively small enclosed office. The telephone which the decedent was required to use to call 911 was located only two and one-half feet from the nearest heater.
Although it is not clear whether the obvious danger test should be applied on an objective or subjective basis, even given the reasonable presumption of greater knowledge on the part of a gas station owner and gas station attendant, I find that the mere use of the heater in the gas station offices does not constitute so obvious a danger as to eliminate the manufacturer or seller’s duty to warn about the hazards of the space heater and its use.
*930The decedent, who was required to enter and occupy the premises where the heater was located, may in fact have reasonably assumed that his proximity to the heaters, even when wearing clothing which absorbed gasoline, would be safe. While the spillage of some gasoline on a gasoline attendant is clearly foreseeable, his recognition of the combustibility of fumes from his clothing in proximity to the heaters may not conclusively be presumed. Therefore, I find that no "obvious danger” existed, and that Arvin had a duty to warn adequately of the hazards of the space heater’s use.
Furthermore, whether the warning Arvin placed upon the heater was adequate is yet another issue of fact to be determined by the jury. The record contains expert testimony demonstrating that the warning did not comply with industry standards.
Assuming that Arvin’s warning was inadequate, the plaintiff must still prove that Arvin’s failure to warn was the proximate cause of the decedent’s injuries and death. I find this also to be a question of fact for the jury, as, arguably, the Arvin space heater might not have been purchased for use in the gasoline station by the defendant owners, had the warning been adequate. Moreover, if the warning had been adequate, the decedent might have become aware of its hazards and avoided entering the premises in his gas-soaked clothing, notwithstanding his injuries.
A further issue for jury determination is whether Arvin should be relieved of liability as a result of an intervening cause, i.e., the beating and dousing of the decedent by the other defendants.
In view of the issues of facts enumerated, summary judgment was properly denied to Arvin on the causes of action based upon its duty to warn. Accordingly, I vote to affirm the order appealed from.