By Michael Hoenig - New York Law Journal -
January 11, 2010
Virtually hot off the
press is the Appellate Division, First Department's decision in
Chow v. Reckitt & Colman Inc.1
Jan. 7) Issued only on Jan. 5 of this new year,
Chow is an interesting
reminder that, whether the reader thinks he or she knows a lot or a
little about the law of product design liability, one often needs to get
back to some doctrinal basics about the subject in order to litigate
such cases appropriately. And, even if one thinks he or she knows it
all, a dose of some humility may be in order because even crackerjack
judges can disagree about legal nuances and the application of the law
to specific facts.
In Chow, the First
Department panel split 3-2 in upholding a trial court's grant of summary
judgment to the products defendant. The plaintiff was blinded in one eye
while using defendant's product, a drain cleaner called "Lewis Red Devil
Lye," in an attempt to unclog a floor drain in the kitchen of a restaurant
where he worked. The bottle's label contained crucial warnings and
directions which plaintiff did not read or ask others for assistance in
reading. The warning advised users that the product should be used only as
directed; that the user "must keep face away from can and drain at all
times"; that "misuse may result in splash back and serious injury"; and that
eye protection must be used.
The container was labeled "poison," bore a picture of a skull and crossbones
and warned that physical contact with the product could cause burning or
blindness. The directions instructed the user to pour only one tablespoon of
the lye directly into a drain. Instead, since only three spoonfuls of Red
Devil Lye were left in the container, plaintiff put the remainder into an
aluminum can and mixed in about three cups of water. He poured the mixture
down the drain, bent over to examine the drain and sustained his injury when
the contents of the drain splashed back into his face.
Plaintiff was an immigrant who could not read English and, so, was unable to
read the warnings and directions. Lye, of course, is a powerful caustic
agent capable of dissolving human tissue by chemical action. Plaintiff filed
his lawsuit alleging negligence and strict products liability causes of
action based on design defect and inadequate warnings. Defendant moved for
summary judgment. The trial court granted the motion on both the warnings
and design claims. Since plaintiff had not read the label or asked another
person to read it to him, the purported inadequacies in the labeling or
warnings were not a substantial factor in bringing about the injury. The
entire appellate panel, majority as well as dissenters, agreed that the
warnings claims were properly dismissed. The panel split 3-2, however, on
the propriety of granting summary judgment regarding the design claims.
We will return to the Chow
decision on the design issue but pause here to give a short "refresher"
survey of the law of product design liability. This will provide context for
the legal principles and nuances that guided the panel justices'
disagreement. Space limitations here mean that only major highlights are
presented. Readers who wish to get back to key basics on a more elaborate
level can study the excellent commentary issued by the Committee on Pattern
Jury Instructions of the Association of Justices of the Supreme Court of the
State of New York. Under Pattern Jury Instruction (PJI) 2:120,2
the reader will find a discussion of products liability law and model jury
instructions plus explanatory commentary for each of those charges. Other
PJI (and comments) following 2:120 cover related theories such as negligence
and breach of express and implied warranties.3
Under strict products liability, a manufacturer or seller who sells a
defective product is liable for any injury that results from the product if
it is being used for its intended or a reasonably foreseeable purpose. A
product is defective if it is "not reasonably safe"—that is, if the product
is so likely to harm persons or property that a reasonable person, who had
actual knowledge of the product's potential for producing injury, would
conclude that it should not have been marketed in that condition. The
plaintiff has the burden of proving that the product was defective and that
the defect was a substantial factor in producing the plaintiff's injury.4
In sum, then, to make out a prima facie case in strict products
liability, a plaintiff must prove the following:
1. The defendant was the manufacturer, seller or supplier of the
alleged instrumentality of injury;
2. The product was defective in design or manufacture, or by reason
of a failure to warn of an inherent danger;
3. The defect existed at the time the product left the defendant's
4. The defect rendered the product "not reasonably safe";
5. The defect was a substantial factor in bringing about the
plaintiff's injuries; and
6. At the time of the accident, the product was being used for the
purpose and in the manner normally intended, or for an unintended but
reasonably foreseeable purpose.
Further, for the plaintiff to fully recover the damages proven, the
following must also be found where such issues are contested:
7. The plaintiff did not misuse the product;
8. The plaintiff-user would not, in the exercise of reasonable
care, have discovered the defect, perceived its danger and averted his or
her injury or damages; and
9. The accident and resulting injuries (and/or death) were not the
result of plaintiff's culpable conduct.5
These elements have clearly been set forth by the Court of Appeals on
numerous occasions.6 A failure to prove any one of the elements
"1" through "6" warrants dismissal of the strict products liability claim.
If a defendant successfully proves any of the elements "7" through "9," any
recoverable damages are diminished by the percentage of fault attributable
to the plaintiff. Occasionally, where elements "7" through "9" are
outrageous enough to contraindicate the existence of a defect or are
demonstrably the proximate cause of injury, the claim may fail as a matter
of law or fact.
The threshold requirement of proving a design "not reasonably safe"
recognizes that "optimum" safety is not the criterion. As the Court of
Appeals observed in Cover v. Cohen,7
"[T]he issue before the jury was whether the [vehicle] with the production
spring it came equipped with was reasonably safe, not whether it used the
safest possible accelerator spring." Beyond meeting the threshold
requirements, the claimant must prove that, if the design defect was known
at the time of manufacture, a reasonable person would have concluded that
the utility of the product did not outweigh the risk involved in marketing a
product in that manner.8 In design defect cases, then, the focus
is not upon the existence of some physical flaw in the product, but rather
upon the reasonableness of the manufacturer's conscious design choice in
light of then-existing technology, practicable feasibility and other
The principles were clarified and reinforced by the Court of Appeals in
Voss v. Black & Decker Manufacturing
Co.,10 a pivotal decision that stated the standards
for evaluating design claims. The Court said that the plaintiff must present
evidence that "there was a substantial likelihood of harm and it was
feasible to design the product in a safe manner." The manufacturer may
oppose by showing that "the product is a safe product"—that is, "one whose
utility outweighs its risks when the product has been designed so that the
risks are reduced to the greatest extent possible while retaining the
product's inherent usefulness at an acceptable cost."11 The jury
may impose liability when, after weighing the evidence and balancing the
product's risks against its utility and cost, it concludes that the product,
as designed, is not reasonably safe.12
In its risk-utility balancing task, the jury may consider several factors.
In Voss, the Court set out
seven factors, which are not necessarily exhaustive:13
(1) the utility of the product to the public as a whole and to the
individual user; (2) the nature of the product—that is, the likelihood that
it will cause injury; (3) the availability of a safer design; (4) the
potential for designing and manufacturing the product so that it is safer
but remains functional and reasonably priced; (5) the ability of the
plaintiff to have avoided injury by careful use of the product; (6) the
degree of awareness of the potential danger of the product which reasonably
can be attributed to the plaintiff; and (7) the manufacturer's ability to
spread any cost related to improving the safety of the design.
The Voss court also
clarified the relevance of "state of the art" in design defect cases, saying
that "the design of the product in light of the state of the art at the time
of production is the issue."14
Voss' restatement of strict
products liability for design cases as a "risk-utility balancing" inquiry
was reinforced in Cover v. Cohen,15
which clarified that the relevant time frame for gauging design defects is
the date the product was marketed. In other words, the defectiveness of a
product cannot be measured by standards of performance available at the time
of trial or by technological capabilities available at the time of the
accident. The critical time period against which a jury balances the
product's risks against its utilitarian features is the date of sale.
The risk-utility calculus used in establishing a design claim includes
consideration of a safer alternative design, which the plaintiff must prove.
To establish that a safer alternative was available, the plaintiff must
offer evidence as to the feasibility of designing the product in a safer
manner and that the proposed alternative design would have prevented or
minimized his or her injuries. Such proof usually entails competent expert
With these guidelines in mind, let's return to the design controversy in the
recent Chow decision.
Plaintiff based his design defect claim upon lye's propensity to cause
splashback. Citing Voss,
the panel majority observed that "[A] defectively designed product is one
which, at the time it leaves the seller's hands, is in a condition not
reasonably contemplated by the ultimate consumer and is unreasonably
dangerous for its intended use; that is, one whose utility does not outweigh
the danger inherent in its introduction into the stream of commerce." On a
summary judgment motion, if a defendant comes forward with any evidence that
the accident was not necessarily attributable to a defect, "the plaintiff
must then produce direct evidence of a defect."16
The defendant met that burden here by making a prima facie showing that
plaintiff's failure to heed the product warnings was the sole proximate
cause of the accident. This required plaintiff to establish that the product
was not reasonably safe and that it was feasible to design the product in a
safer manner. Plaintiff relied on the affidavit of a chemist and chemical
engineer who opined that the product, Red Devil Lye, was unreasonably
dangerous and had a known propensity to cause splashback.
The expert posited that nothing plaintiff did caused his injury—an opinion
the panel majority viewed as lacking probative value since it omitted
critical discussion of Chow's
use of more lye than directed as well as his failure to keep his face away
from the drain per the label's instructions. The omission by the expert was
"significant because a manufacturer need not incorporate safety features
into its product so as to guarantee that no harm will come to every user no
matter how careless or reckless."17
The expert's proposed alternative design was a dilution of the product to a
3 to 5 percent sodium hydroxide composition. But how he arrived at these
percentages was unexplained. The expert's bare conclusion that his
recommended dilution would provide enough drain cleaning power to open
clogged drains, although it would take "somewhat longer to do the job," was
also not explained. His conclusion that bottling lye in a water-based
solution without rendering the product ineffective was similarly
unsupported. Two "differently designed products that…are generally similar
in function, may nonetheless yield results so different in quality as to
make it impossible to characterize the design of the safer product as a
feasible alternative to the design of the more hazardous product."
The expert's affidavit did not set forth the foundation for his conclusion
that his suggested alternatives were feasible. Thus, the affidavit fell
short of explaining how the product can feasibly be made safer. The panel
majority also viewed the expert's citation to certain source materials
"dubious." One cite was to a 1970 proposal by the Food and Drug
Administration to amend the Federal Hazardous Substances Act to declare
liquid drain cleaners with 10 percent or more of sodium hydroxide as banned
hazardous substances. But this proposal was not aimed at preventing
splashback. Rather, the objective was to curb ingestion injuries to children
under 5 years old. The other source was a 1989 letter to the Consumer
Product Safety Commission by the Association of Trial Lawyers of America.
The court concluded: "[i]t should go without saying that in the field of
chemistry, a letter from a bar association would not fall within the
'professional reliability' exception to the rule that an expert's opinion
must be based on facts in the record or personally known to the expert."
Accordingly, dismissal of the design claim was upheld.
Two dissenting justices concluded, however, that the expert's affidavit
presented enough of a showing that the product was too dangerous to be
marketed for use by lay people. The expert's proposal for a safer
alternative was dilution to a 3 to 5 percent lye solution which would still
be "strong enough to open clogged drains, albeit taking somewhat longer to
do the job." Another proposed alternative was a premade lye and water
solution "which would not change the chemical and…would still be as
effective." The dissenters distinguished cases where the proposed
alternative designs were found not to be "equivalents" because they were
functionally different products. Here the functional difference between Red
Devil Lye and the safer dilutions would be "minimal," said the dissenting
justices. The dilutions would be "as effective" at accomplishing the
product's purpose of unclogging drains, and would at most take somewhat
longer to work.
As for the two sources dubbed "dubious" by the majority, including the trial
lawyers' association letter, the dissenters disagreed that the expert had
actually relied on them for his opinion. Rather, the expert merely set forth
what appeared to be a clear explanation for the chemical reaction that
occurred and recommendations for plausible alternatives, some of which are
similar to products on the market. The dissenting justices would reinstate
the design claim and let the jury decide the defectiveness issue.
The law applicable to
resolving product design claims abounds in complexities and nuances that, as
applied in real-life cases, challenge even the most proficient lawyers and
jurists. The Chow case,
not even among the most intricate of design claims, reflects some of the
tensions inherent in design litigation. Mastery of the legal principles—our
survey above merely scratched the surface—is indispensable in perfecting
Michael Hoenig is a
member of Herzfeld & Rubin.
1. Chow v. Reckitt & Colman
Inc., 2010 NY Slip Op 00013 (App. Div., 1st Dept., Jan. 5,
2. 1A N.Y. Pattern Jury Instructions (Civil), PJI 2:120, pp.
674-737 (3rd Ed. 2009).
3. Readers can also consult this writer's chapter titled, "The Law
of Manufacturing and Design Defect Liability," as well as other chapters
authored by others in a volume published by the New York State Bar
Association (NYSBA) called, "Products Liability in New York: Strategy and
Practice" (NYSBA 1997) (editor-in-chief Neil A. Goldberg). The text was
updated by the NYSBA with a 2002 Supplement bearing the same title.
4. See PJI 2:120.
5. See Hoenig, "The Law of Manufacturing and Design Defect
Liability," supra n. 3, at pp. 14-18, 20-34.
6. See, e.g., Sawyer v.
Dreis & Krump Mfg. Co., 67 N.Y.2d 328 (1986);
Voss v. Black & Decker Mfg. Co.,
59 N.Y.2d 102 (1983); Velez v.
Craine & Clark Lumber Corp., 33 N.Y.2d 117, 122 (1973);
Codling v. Paglia, 32 N.Y.2d
330, 342, (1973).
7. 61 N.Y.2d 261, 272 (1984).
8. Voss, 59
N.Y.2d at 108; Denny v. Ford Motor
Co., 87 N.Y.2d 248, 269 (1995).
9. Id., Voss,
59 N.Y.2d at 109.
10. 59 N.Y.2d 102 (1983).
11. Id. at 108.
12. Id. at 109.
13. These factors are nonexclusive, as is apparent from the Court's
language discussing them: "[T]he jury may consider several factors" and
"Those factors may include the following." Id. at 109. In
Denny, the Court's language
in confirming the risk-utility approach indicated the nonexclusivity of the
seven factors: "This standard demands an inquiry
into such factors as…[enumerating
factors]." Denny, 87
N.Y.2d at 257 (emphasis added).
14. Voss, 59
N.Y.2d at 111.
15. 61 N.Y.2d 261 (1984).
16. Chow, NY Slip
Op, at 2.
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