Products Liability – New York Appellate Digest

IN THIS PRODUCTS LIABILITY ACTION WHERE A ROUTER SEVERED PLAINTIFF’S THUMB, THE FAILURE-TO-WARN CAUSE OF ACTION BASED ON THE MANUAL SHOULD HAVE BEEN DISMISSED BECAUSE PLANTIFF NEVER READ IT; THE GENERALIZED FAILURE-TO-WARN CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; DISAGREEING WITH THE SECOND DEPARTMENT, THE DESIGN-DEFECT CAUSE OF ACTION BASED ON THE LACK OF AN INTERLOCK DEVICE PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, modifying Supreme Court in this products liability case where plaintiff severed his thumb using a router, determined: (1) the failure-to-warn cause of action based upon the product manual should have been dismissed because plaintiff testified he never read it; (2) the generalized failure-to-warn cause of cause properly survived summary judgment; and (3) the design defect cause of action alleging the router should have had an interlock device which would shut it down properly survived summary judgment. Whether plaintiff was familiar with the risk of amputation such that the defendant was relieved of the duty to warn is a question of fact. And whether the lack of an interlock device is a design defect is a question of fact (disagreeing with decisions from the Second Department):

… [T]he record contains evidence that plaintiff had knowledge of power tools other than the router and the general hazards associated with cutting devices. Plaintiff also had used the router on one prior occasion at the premises before the accident. However, it is for a jury, not the court, to determine whether, based on the evidence and testimony presented, plaintiff had sufficient knowledge of the specific hazards from the use of the router to relieve defendants of their duty to warn of them. Further, whether the router presented an open and obvious danger is also a jury issue. * * *

The branch of defendants’ motion for summary judgment dismissing the design defect claim based on the lack of an interlock was also properly denied. We recognize that the Second Department has held that such a claim is per se unviable in Chavez v Delta Intl. Mach. Corp. (130 AD3d 667 [2d Dept 2015]), Patino v Lockformer Co. (303 AD2d 731 [2d Dept 2003]), and Giunta v Delta Intl. Mach. (300 AD2d 350 [2d Dept 2002]). Chavez (at 669), the most recent of these cases, cited Patino and Giunta for this proposition, and in Giunta (at 351), the Second Department held that a theory of liability that a “table saw should have been designed with an interlock which would have prevented the motor from starting if the blade guard was off. . . . was explicitly rejected as a matter of law in David v Makita U.S.A. (233 AD2d 145 [1st Dept 1996]), and implicitly rejected in Banks v Makita, U.S.A. (226 AD2d 659 [2d Dept 1996], lv denied 89 NY2d 805 [1996]).”

However, we read neither David nor Banks as supporting Giunta’s conclusion. Vasquez v Ridge Tool Pattern Co., 2022 NY Slip Op 03488, First Dept 5-31-22

Practice Point: In this products liability case where plaintiff lost a thumb using a router, there was a question of fact whether plaintiff was familiar enough with the danger of amputation that the defendant should be relieved of liability for the failure to warn. Here the First Department, disagreeing with the Second Department, determined the absence of an interlock device which would shut the router down raised a question of fact on the design-defect cause of action.

May 31, 2022/0 Comments/by Bruce Freeman

Civil Procedure, Evidence, Negligence, Products Liability

ALTHOUGH PLAINTIFF, WHO WAS INJURED WHILE REPAIRING AN ESCALATOR, COULD NOT IDENTIFY THE CAUSE OF THE ESCALATOR’S SUDDEN START-UP, THE MOTION TO COMPEL HIM TO SUPPLEMENT HIS ANSWERS TO INTERROGATORIES WAS PROPERLY DENIED; PRODUCTS LIABILITY ACTIONS CAN BE PROVEN BY CIRCUMSTANTIAL EVIDENCE; AT THIS STAGE PLAINTIFF CAN TESTIFY UNDER OATH THAT HE DOES NOT KNOW THE CAUSE OF THE UNEXPECTED START-UP (FIRST DEPT).

The First Department determined the motion to compel plaintiff to supplement his interrogatories in this products liability case was properly denied. Plaintiff alleged the escalator he was working on started up without warning severely injured his leg. The fact that plaintiff can not identify the cause of the unexpected start-up did not require supplementing his interrogatories as he can so state “under oath:”

“It is well settled that a products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect” … . In the absence of evidence identifying a specific defect “a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to [the] defendants” … . If a “plaintiff is unable to prove both elements, ‘a jury may not infer that the harm was caused by a defective product unless [the] plaintiff offers competent evidence identifying a specific flaw'” …

In his interrogatory responses, plaintiff identified several alleged design defects, including the design of the pit, that contributed to his injury. However, he did not identify a cause for the unexpected start up of the escalator. … Presently, plaintiff asserts that he cannot pinpoint the defective component that allowed the escalator’s machinery to begin moving without warning. In an instance where plaintiff “presently lacks the knowledge” to specifically identify the nature of the defect, plaintiff can testify to that “under oath” … . … [I]f he acquires the pertinent information he would be under an obligation to promptly supplement his answers to the interrogatories at issue … . Berkovich v Judlau Contr., Inc., 2022 NY Slip Op 01733, First Dept 3-15-22

Practice Point: Products liability actions can be proven by circumstantial evidence. If a plaintiff does not know the cause of a product malfunction (here, an escalator which allegedly started running unexpectedly) at the discovery stage, the plaintiff can testify to that fact under oath.

March 15, 2022/by Bruce Freeman

Contract Law, Negligence, Products Liability

DEFENDANT, BASED ON ITS STATUS AS BAILOR OF THE MACHINE WHICH ALLEGEDLY INJURED PLAINTIFF, MAY BE LIABLE UNDER BREACH OF WARRANTY AND STRICT PRODUCTS LIABILITY CAUSES OF ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decisions addressing many issues not summarized here, noted that breach of warranty and strict products liability causes of action can arise from a bailment. Here plaintiff alleged she was injured by a machine (called a “table”) and defendant was the “owner” of the table by virtue of its status as bailor:

In light of … material issues of fact as to whether defendant owned and/or was bailor of the table, we find that Supreme Court erred in granting defendant’s motion for summary judgment as to the breach of implied warranty cause of action. As “[t]here is, in fact, no substantive distinction between [the theories of breach of implied warranty and strict products liability] in the context of this case” … , we reach this same conclusion as to the strict products liability cause of action. Reese v Raymond Corp., 2022 NY Slip Op 01077, Third Dept 2-17-22

February 17, 2022/by Bruce Freeman

Evidence, Negligence, Products Liability

DEFENDANT MANUFACTURER AND RETAILER SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE DESIGN DEFECT, FAILURE TO WARN AND IMPLIED WARRANTY CAUSES OF ACTION; PLAINTIFF WAS INJURED USING A “HOVERBOARD” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to the manufacturer and retailer of a “hoverboard” on the products liability (design defect), failure to warn and implied warranty causes of action. Plaintiff alleged she was using the hoverboard in accordance with the instructions and was injured. The expert affidavit provided by the defendants was conclusory and did not eliminate questions of fact on the design defect cause of action:

A defendant moving for summary judgment dismissing a design defect cause of action must establish, prima facie, that the subject product was reasonably safe for its intended use or that the plaintiff’s actions constituted the sole proximate cause of his or her injuries … .

The defendants’ expert, in his affidavit, opined in mere conclusory fashion that the hoverboard was not defectively designed, without providing any explanation of the hoverboard’s design, or any discussion of industry standards or costs. Nor did the expert state whether the defendants had received complaints about any of the other hoverboards they had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the hoverboard was reasonably safe for its intended use … . LaScala v QVC, 2022 NY Slip Op 00305. Second Dept 1-19-22

January 19, 2022/by Bruce Freeman

Negligence, Products Liability

THE PRODUCTS LIABILITY AND BREACH OF WARRANTY CAUSES OF ACTION ALLEGING THE FAILURE OF AN IMPLANTED MEDICAL DEVICE WHICH ASSISTS THE HEART WERE PREEMPTED BY FEDERAL LAW; THE CAUSES OF ACTION ALLEGING NEGLIGENCE ON THE PART OF THE ENGINEERS WHO REPLACED THE LEAD TO THE DEVICE WERE NOT PREEMPTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the products liability and breach of warranty causes action alleging decedent’s death was caused by an implanted medical device which assisted the heart were preempted by the Federal Food, Drug, and Cosmetic Act as amended by the Medical Device Amendments of 1976 (MDA). But the causes of action alleging negligence of the engineers who replaced a lead on the device were not preempted by the MDA:

The MDA … includes an express preemption provision, prohibiting state requirements “with respect to a device intended for human use” (21 USC 360k[a]) which are “different from, or in addition to, any requirement” … applicable under federal law and which “relate[ ] to the safety or effectiveness of the device” … . Pursuant to this provision, it has been held that common-law causes of action which “challenge the safety and effectiveness of a medical device and seek to impose requirements that are ‘different from, or in addition to,’ federal requirements,” such as those sounding in products liability and breach of warranty, are preempted … .

… [P]laintiff … claims in her first and fifth causes of action that negligent acts or omissions of the engineers … , allegedly committed during the course of their replacement of the lead in the decedent’s LVAD, were a proximate cause of his death. Those claims in those causes of action do not “challenge the safety and effectiveness of a medical device and seek to impose requirements” different or additional to federal law … . Accordingly, they are not preempted. Arnold v Lanier, 2021 NY Slip Op 06666, Second Dept 12-1-21

December 1, 2021/by Bruce Freeman

Landlord-Tenant, Negligence, Products Liability

THERE WAS A QUESTION OF FACT WHETHER THE FORKLIFT ACCIDENT RESULTED FROM A HOLE OR CRACK IN THE SIDEWALK ADJACENT TO THE OUT-OF-POSSESSION LANDLORD’S BUILDING; EVEN OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR MAINTAINING THE ADJACENT SIDEWALK IN A REASONABLY SAFE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant out-of-possession landlord’s motion for summary judgment in this forklift accident case should not have been granted. There was a question of fact whether the forklift struck a hole or a crack in the sidewalk. Under the NYC Administrative Code, an out-of-possession landlord is responsible for maintaining the adjacent sidewalk in a reasonably safe condition:

… [T]he Administrative Code requires owners of real property abutting any public sidewalk to maintain that sidewalk in a reasonably safe condition (Administrative Code § 7-210 …). This duty, on in- and out-of-possession landlords alike, is nondelegable … . The statute does not impose strict liability, and thus a plaintiff must still prove the elements of negligence in order to hold an owner liable … . Administrative Code § 19-101(d) defines “sidewalk” as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines” … . If the area where plaintiff’s accident occurred was either inside the premises or at an entrance that was within defendant’s property, the Administrative Code does not apply … . Vargas v Weishaus, 2021 NY Slip Op 06663, First Dept 11-30-21

November 30, 2021/by Bruce Freeman

Negligence, Products Liability, Uniform Commercial Code

ALTHOUGH THE ELECTRIC BICYCLE WAS SOLD BY A THIRD-PARTY THROUGH AMAZON AND WAS ASSEMBLED BY AN APPROVED AMAZON PROVIDER, THERE IS NO THEORY UNDER WHICH AMAZON CAN BE HELD LIABLE FOR AN INJURY CAUSED BY IMPROPER ASSEMBLY OF THE BICYCLE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, determined Amazon could not be held liable for an injury caused by an electric bicycle purchased through Amazon which apparently was not assembled properly. Eshion, a China-based company, listed the bicycle on Amazon. The purchaser, plaintiff’s father, elected to have the bicycle assembled. Codefendant Tri-State Assembly offers its assembly services on Amazon and was an Amazon approved service provider. Plaintiff alleged the bicycle was not assembled properly (by Tri-State) and plaintiff fell because the handlebars loosened while he was riding it:

The Uniform Commercial Code clearly provides that implied warranties only extend to sellers (see UCC 2-314 [1]; 2-315 … ). Plaintiff’s breach of warranty claim fails because Amazon submitted sufficient documentary evidence and unrefuted affidavits from its representatives to establish prima facie that it did not sell, manufacture, distribute or assemble the bicycle.

The supporting affidavits indicate that, pursuant to contract, third-party sellers such as Eshion are responsible for all aspects of their sales, such as setting a price, describing the product being sold, and offering any warranties. In this case, Eshion sold the bicycle and shipped it directly to plaintiff. At no time was the bicycle ever in Amazon’s possession or control, nor did it ever obtain title to the bicycle (see UCC 2-106 [1]). Further, when placing orders all Amazon.com users agree to its Conditions of Use, wherein Amazon disclaims all warranties for products sold by third-party sellers.

In opposition, plaintiff failed to raise an issue of fact. Wallace v Tri-State Assembly, LLC, 2021 NY Slip Op 06664, First Dept 11-30-21

November 30, 2021/by Bruce Freeman

Negligence, Products Liability

PROOF THE ELEVATOR DOOR MALFUNCTIONED WHEN PLAINTIFF ATTEMPTED TO ENTER THE ELEVATOR DID NOT SUPPORT A PRODUCTS LIABILITY CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s proof demonstrated that the elevator door malfunctioned at the time plaintiff attempted to enter the elevator. A malfunction is not enough to support a products liability cause of action:

Plaintiff Patricia Booth was injured when she was knocked to the ground when the doors to an elevator closed as she was attempting to enter the elevator; Otis had modernized the elevator eight years earlier. Otis established prima facie entitlement to summary judgment dismissing the strict products liability claim by submitting evidence that the elevator door at issue was not defective … .

… Crediting the testimony of plaintiff’s daughter that she was holding the door open button and that plaintiff had crossed the elevator threshold when the doors began to close, this establishes nothing more than a malfunction at the time of the accident, which is insufficient to maintain a strict products liability cause of action … . The fact that Otis “both supplied the elevator and serviced it after installation would not impose upon [it] strict liability for a defect which developed after installation was completed” … . Booth v Otis El. Co., 2021 NY Slip Op 06433, First Dept 11-18-21

November 18, 2021/by Bruce Freeman

Evidence, Negligence, Products Liability

THIS PRODUCTS LIABILITY (DEFECTIVE DESIGN) ACTION AROSE FROM THE ROLLOVER OF A VEHICLE MADE BY DEFENDANT FORD; PLAINTIFF’S EXPERT’S AFFIDAVIT ALLEGING THE VEHICLE WAS UNSAFE AND PRONE TO ROLLOVERS WAS CONCLUSORY AND THEREFORE DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s expert’s conclusory affidavit alleging defendant’s vehicle was unsafe did not raise a question of fact in this products liability action stemming from the rollover of a vehicle made by defendant (Ford):

The defective design claim should have been dismissed because plaintiff failed to rebut defendant’s prima facie showing that the Ford van was not negligently designed. ‘Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is usually for the jury to make the required risk-utility analysis” whether the product was reasonably safe … . However, an expert cannot raise an issue of fact to defeat a motion for summary judgment when the opinion consists of only bare conclusory allegations of alleged defects or industry wide knowledge … . Here, plaintiffs’ expert’s assertions that the vehicle at issue was unsafe and prone to rollovers was unsupported by any data or calculations concerning the testing he purportedly performed, testing he described in the most conclusory of terms and general of statements … . Richards v Ford Motor Co., 2021 NY Slip Op 05469, First Dept 10-12-21

October 12, 2021/by Bruce Freeman

Negligence, Products Liability

THE DEFECTIVE-DESIGN CAUSE OF ACTION AGAINST THE SELLERS OF A TRUCK WHICH DID NOT HAVE A BACK-UP ALARM SHOULD NOT HAVE BEEN DISMISSED; THE PURCHASER OF THE TRUCK TESTIFIED HE WAS NOT AWARE THE OPTION WAS AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defective-design cause of action against the defendant sellers of a truck should not have been dismissed. The truck was purchased by plaintiff’s employer who testified he did not know a back-up alarm was an available option. Plaintiff was run over as the truck backed up:

Where, as here, a plaintiff buyer claims that a product without an optional safety feature is defectively designed because the feature was not included as a standard feature, the product is not defective if “(1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer’s use of the product” … . Here, defendants submitted the deposition testimony of plaintiff’s employer, who testified that, at the time he bought the truck that was involved in the accident, he “didn’t know” that a backup alarm was available as an option, thereby raising an issue of fact whether he was actually aware of its availability … . Mariani v Guardian Fences of WNY, Inc., 2021 NY Slip Op 02906, Fourth Dept 5-7-21

May 7, 2021/by Bruce Freeman

DEFENDANT, BASED ON ITS STATUS AS BAILOR OF THE MACHINE WHICH ALLEGEDLY INJURED PLAINTIFF, MAY BE LIABLE UNDER BREACH OF WARRANTY AND STRICT PRODUCTS LIABILITY CAUSES OF ACTION (THIRD DEPT).

DEFENDANT MANUFACTURER AND RETAILER SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE DESIGN DEFECT, FAILURE TO WARN AND IMPLIED WARRANTY CAUSES OF ACTION; PLAINTIFF WAS INJURED USING A “HOVERBOARD” (SECOND DEPT).

THERE WAS A QUESTION OF FACT WHETHER THE FORKLIFT ACCIDENT RESULTED FROM A HOLE OR CRACK IN THE SIDEWALK ADJACENT TO THE OUT-OF-POSSESSION LANDLORD’S BUILDING; EVEN OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR MAINTAINING THE ADJACENT SIDEWALK IN A REASONABLY SAFE CONDITION (FIRST DEPT).

ALTHOUGH THE ELECTRIC BICYCLE WAS SOLD BY A THIRD-PARTY THROUGH AMAZON AND WAS ASSEMBLED BY AN APPROVED AMAZON PROVIDER, THERE IS NO THEORY UNDER WHICH AMAZON CAN BE HELD LIABLE FOR AN INJURY CAUSED BY IMPROPER ASSEMBLY OF THE BICYCLE (FIRST DEPT).

PROOF THE ELEVATOR DOOR MALFUNCTIONED WHEN PLAINTIFF ATTEMPTED TO ENTER THE ELEVATOR DID NOT SUPPORT A PRODUCTS LIABILITY CAUSE OF ACTION (FIRST DEPT).

THIS PRODUCTS LIABILITY (DEFECTIVE DESIGN) ACTION AROSE FROM THE ROLLOVER OF A VEHICLE MADE BY DEFENDANT FORD; PLAINTIFF’S EXPERT’S AFFIDAVIT ALLEGING THE VEHICLE WAS UNSAFE AND PRONE TO ROLLOVERS WAS CONCLUSORY AND THEREFORE DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

THE DEFECTIVE-DESIGN CAUSE OF ACTION AGAINST THE SELLERS OF A TRUCK WHICH DID NOT HAVE A BACK-UP ALARM SHOULD NOT HAVE BEEN DISMISSED; THE PURCHASER OF THE TRUCK TESTIFIED HE WAS NOT AWARE THE OPTION WAS AVAILABLE (FOURTH DEPT).

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