By Michael Hoenig - New York Law Journal - June 13, 2011
The New York Court of Appeals issued its decision in
Yun Tung Chow v. Reckitt & Colman Inc.1 on May 10. It was
a products liability case. Plaintiff, a restaurant worker who read no
English suffered burns and lost sight in his left eye when a solution he
created of 100 percent sodium hydroxide crystals and water splashed back
from a clogged floor drain in the kitchen as he bent forward at the
waist. The product, commonly known as lye, was sold under the brand name
Lewis Red Devil Lye, which the Court abbreviated for convenience as RDL.
The product is sold in the form of dry crystals and is packaged and
marketed as a product that clears clogged drains.
The RDL came in a bottle which had printed instructions and warnings. The
user is told to "keep face away from can and drain at all times." The label
warned that splash back and serious injury may occur if RDL is not used as
directed. In the label's section called "Directions for Use," it said
protective eyewear and rubber gloves are to be used when handling the
products. The user is advised that one should "NEVER POUR LYE DIRECTLY FROM
CONTAINER INTO DRAIN." Instead, a plastic spoon is to be used to dispense
the product. The user is advised to keep RDL away from contact with
"aluminum utensils." One tablespoon of the dry crystals is to be spooned
into the clogged drain; then the user is to wait 30 minutes. After that
interval, the user may check to see if the drain is clear by "adding several
cups of COLD water." If the drain is not clear the label advises to try a
repeat application only once. If the drain clog continues, a plumber should
Unable to read English, plaintiff testified (through an interpreter) that
he never read the label's instructions and warnings. He made no attempt to
obtain assistance in reading the label. He used the RDL many times in the
past, having learned how to handle the lye by following the examples of
others he observed. Normally, he would take one spoonful of RDL, add one cup
of water, and then pour that solution down the clogged drain. Then, "right
after that," he would flush the drain with water and the drain would be
On the fateful day, however, upon noticing the clogged kitchen floor
drain, plaintiff found there was little remaining in the RDL bottle. So he
put all that was left, some three spoonfuls, into an aluminum can and poured
in roughly three cups of cold water. There was no reaction in the container.
He walked the four steps to the drain and, without using eye protection,
bent at the waist, and poured the solution into the drain. Immediately,
there was a splash back with the sad consequences.
Plaintiff sued on theories of defective design and inadequate warnings.
Defendants moved for summary judgment. The Supreme Court dismissed the
inadequate warnings claim since plaintiff made no attempt to read or obtain
assistance in reading the label. Thus, any inadequacies in the product's
labeling were not a substantial factor in bringing about the injury. The
Appellate Division, First Department, agreed that the warnings claim was not
viable, a ruling not challenged in the Court of Appeals.
Plaintiff's design claim focused on the lye's alleged propensity to cause
splash back. Plaintiff offered the affidavit of a chemist and chemical
engineer who opined that RDL was unreasonably dangerous. Further, he said, a
safer alternative could be created by diluting the sodium hydroxide to a 3
percent to 5 percent solution. How he arrived at these percentages was
unexplained. He conceded it would take "somewhat longer to do the job." The
expert also did not support his proposition that bottling lye in a
water-based solution would not change its chemical composition.
A majority of the Appellate Division panel deemed the affidavit to fall
short of explaining how the product could feasibly be made safer. Two
justices dissented concluding that plaintiff raised an issue of fact whether
RDL was defectively designed, that is, whether the product's utility
outweighed its inherent danger.
In an opinion by Chief Judge Jonathan Lippman, the Court of Appeals
concluded that the summary judgment on the design issue should not have been
granted. The root problem was not in the discernment or application of
products liability law but, rather, with the showing required on the summary
judgment motion. Thus, declared the Court: "We conclude, in accordance with
settled summary judgment and products liability principles, that a defendant
moving for summary judgment in a defective design case must do more than
state, in categorical language in an attorney's affirmation, that its
product is inherently dangerous and that its dangers are well known. Rather,
to be entitled to summary judgment in such a case, a defendant must
demonstrate that its product is reasonably safe for its intended use; that
is, the utility of the product outweighs its inherent danger. Defendants
failed to make such a showing here."
Clearly, plaintiff's handling of the RDL was not in accordance with the
label's instructions and warnings. Clearly, too, lye is dangerous and many
would know that. But, as with any motion for summary judgment, "defendants
must first show an entitlement to judgment as a matter of law." Thus, "a
mere statement in an attorney's affirmation" in support of a motion for
summary judgment that lye is lye, that everyone knows it is dangerous, and
that any variation in RDL's composition would result in a different product
because such altered product "would not be 100% sodium hydroxide," is not
enough. Such an attorney's statement "does not result in a shift of the
burden to plaintiff to then explain how RDL could be made safer."
At this motion stage, defendants cannot simply rely on the fact that the
product is what they say it is and that the danger is well known. "[T]hat
only begs the question at the heart of the merits of the design claim." That
question is: "knowing how dangerous lye is, was it reasonable for defendants
to place it into the stream of commerce as a drain cleaning product for use
by a layperson?" The Court concluded that defendants offered no answer to
this question and, thus, did not demonstrate entitlement to judgment as a
matter of law.
But, what about plaintiff's mishandling of the product? At the Appellate
Division, the majority justices concluded that, "Defendants have met their
burden by making a prima facie showing that Chow's failure to heed the
product warning was the sole proximate cause of the accident."2
The Court of Appeals, however, disagreed but predominantly because the
state of the record offered by defendants in support of the summary judgment
motion was not enough. Summary judgment in a strict products liability case
can be granted on the basis of the plaintiff's actions, when they constitute
"the sole proximate cause" of his or her injuries. However, plaintiff's
mishandling of the RDL product here, standing alone, was not sufficient
because the record presented by defendant on the motion was inadequate. "[A]
factfinder could conclude on the basis of the record before us that the
product was so inherently dangerous that it should never have found its way
into the stream of commerce as packaged and marketed."
In effect, suggests the Court, as the summary judgment motion was drawn
and presented, defendant merely posited that lye is lye and its danger is
well known. The focus of the showing was on plaintiff's misuse of the
product without his heeding of the warnings. At this point, suggests the
Court, the "reasonably safe" character of the RDL's design had not yet been
shown. Thus, there was a gap in the requisite showing on a summary judgment
motion that RDL's design utility outweighed its risks, i.e., that it was
reasonably safe, i.e., that it was not defective. That kind of a showing—not
by way of a conclusory attorney's affirmation—when properly made and offered
would place a burden on plaintiff to come forward with competent proof.
Plaintiff would have to show that the product's risks outweighed its
utilitarian features and that the product, therefore, was not reasonably
In the summary judgment stage, the absence of a showing that the RDL
product's design was "reasonably safe," that its utility outweighed its
risks, left the possibility that a factfinder—on that record—could find the
lye "was so inherently dangerous that it should never have found its way
into the stream of commerce as packaged and marketed." That doesn't mean the
RDL product is, in fact, that dangerous. It simply means that the
affirmative showing needed for summary judgment—that RDL was reasonably
safe—was not made.
The Court confirms this in the opinion's last substantive paragraph:
"Defendants here may ultimately prevail on the merits by showing that RDL's
utility outweighs its inherent danger and by demonstrating through expert
testimony that it was not feasible to design a safer, similarly effective
and reasonably priced alternative product." On this motion, however, merely
stating in an attorney's affirmation that RDL is knowingly dangerous and
that warnings were not followed "was insufficient" for a grant of summary
judgment as a matter of law. "Defendants were required to demonstrate that
RDL was reasonably safe for its intended use, but they offered no such
Judge Robert S. Smith, in a separate concurring opinion, joined in by
Judge Susan Phillips Read, observes that "our decision is the result not of
the merit of plaintiff's case, but of a feature of New York procedural law."
Plaintiff will have the burden of proof at trial of the product's design
defectiveness, i.e., whether lye is reasonably safe for its intended use.
Here plaintiffs tried to meet their burden in an expert's opposing affidavit
"but fell short." Had plaintiff developed this record at a trial, a directed
verdict for defendants would be required. One might think, therefore, that
the record would entitle defendants to summary judgment.
One who thought that "would be wrong," however, "because the initial
burden to make an evidentiary showing on summary judgment rests on the
moving party." Here the inadequacy of plaintiff's expert's affidavit is
"irrelevant" because defendants "produced no evidence of the absence of a
safer but functionally equivalent alternative to lye." Defendants relied
simply on a statement in an attorney's affirmation that "the product at
issue…cannot be designed differently without making it into an entirely
different product." A necessary evidentiary showing might not have been hard
to meet: "an affidavit from someone knowledgeable in the industry—either a
retained expert or an employee of one of the defendants—could have done it.
But that burden was not met."
Alarmists could read atomized sentences in the Court's opinion as
portents of a changed or changing products liability law for New York. Such
a reading would appear to be off base and unwarranted. Rather, the Court has
used the extremity of liability boundaries along with picturesque
language—"the product was so inherently dangerous it should never have found
its way into the stream of commerce as packaged and marketed"—in order to
punctuate the requisite showing on a summary judgment motion. Such hyperbole
emphatically instructs on the evidentiary gap, on what was not shown, on the
proofs that should have attended the summary judgment motion.
New York products liability law on design remains what it is, a "not
reasonably safe" standard. Products that are dangerous to use in society are
not foreclosed so long as they are "reasonably safe." What that means will
depend on the product, its ambit of use and misuse, the steps needed to be
taken to make its use reasonably safe, the precise factual circumstances in
the case and the interface of plaintiff's conduct. That is the way it was.
That is the way it is. The new Yun Tung Chow decision does not change this.
But, if one wants to structure a viable summary judgment motion or defend
against it, the new decision gives cogent lessons.
Michael Hoenig is a
member of Herzfeld & Rubin.
1. 2011 NY Slip Op 3888, 2011 N.Y. LEXIS 754 (N.Y. Ct. App. May 10,
2. Yun Tung Chow, 69 A.D.3d 413, 414 (1st Dept. 2010).
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