Corporate Counsel Litigation Newsletter July 2003 Bond, Schoeneck & King, PLLC New York Albany § 518-533-3000 Buffalo § 716-566-2800 Oswego § 315-343-9116 Syracuse § 315-218-8000 Utica § 315-738-1223 Kansas Overland Park § 913-234-4400 Bond, Schoeneck & King, P.A. Florida Bonita Springs § 239-390-5000 Naples § 239-659-3800 BS&K publications are for clients and friends of the firm and are not intended to substitute for professional counseling or advice. For information about our firm, our practice areas and our attorneys, please visit our interactive web site, www.bsk.com. © 2003 Bond, Schoeneck & King, PLLC All Rights Reserved Printed on recycled paper PRODUCTS LIABILITY MATERIAL ALTERATIONS LAW IN A POST-LIRIANO AGE For years, well-settled law in New York held that a manufacturer could not be found liable for injuries caused by substantial alterations to the product by a third party that render the product defective or unsafe. Robinson v. ReedPrentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479 (1980). The Court of Appeals changed the legal landscape in 1998 by stating that even if the injury is due to a material alteration, the manufacturer may be liable under a failure to warn theory. Liriano v. Hobart Corp., 92 N.Y.2d 232, 241 (1998). This new theory for manufacturer liability may make it easier for plaintiffs to survive summary judgment and proceed to trial unless a defendant manufacturer carefully lays out the necessary defense elements. Liriano reaffirmed a key tenet of Robinson and its progeny: a manufacturer is not liable for injuries caused by material alterations to its product by a third party, unless the product is deliberately manufactured in such a way as to permit the product to be used without its safety features. Liriano, 92 N.Y.2d at 238. The Court of Appeals went on to create a separate cause of action for failure to warn, applicable when the material alteration of a safety device is foreseeable and the manufacturer fails to give adequate warning against using the product with the safety device disabled or removed. Id. Notably, a plaintiff may prevail on this theory even “in cases in which the substantial modification defense as articulated in Robinson might otherwise preclude a design defect claim.” Id. at 241. The Court justified imposing a duty to warn based on a “manufacturer’s unique (and superior) position to follow the use and adaptation of its product by customers.” Id. at 240. However, the Court described failure-towarn liability as “intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause.” Liriano, 92 N.Y.2d at 243. An examination of post-Liriano case law shows that while plaintiffs are eagerly attempting to exploit this new theory for tort recovery, the courts remain willing to impose summary judgment in favor of defendant manufacturers on a proper showing of the facts, including: • the product was reasonably safe when it left the manufacturer’s hands. A manufacturer may be BOND, SCHOENECK & KING, PLLC ATTORNEYS AT LAW § NEW YORK FLORIDA KANSAS liable if plaintiff can show the product was designed to be used without the safety device, and thus was unsafe as sold. Burns v. Haines Equip., Inc., 284 A.D.2d 922, 923 (4th Dept. 2001). The harder it is to remove the safety device, the easier it will be for a defendant manufacturer to prove the product was meant to be used only with the safety device. See id. (safety device removed with blow torch, “thus there is no evidence that the loader was designed to permit use without the safety guard”); • the product was materially altered by the end user. In Liriano, the Court of Appeals found that material alteration of a safety feature built into the final product may constitute a material alteration. Liriano, 92 N.Y.2d at 241 (“a safety device built into the integrated final product is often the most effective way to communicate that operation of the product without the device is hazardous”). However, courts have found that a minor alteration, such as depressing a safety lock with a piece of tape, does not constitute a material alteration. Dickerson v. George J. Meyer Mfg., Inc., 248 A.D.2d 970, 971 (4th Dept. 1998); • the end user was warned against foreseeable modifications. A manufacturer will not be held liable for failure to warn where it can show that “warning labels and safety decals have been removed or painted over” by the product’s end user. Burns, 284 A.D.2d at 923-24; McGregor v. Flexcon Co., 275 A.D.2d 1001, 1002 (4th Dept. 2000) (no liability for manufacturer where employer covered up manufacturer’s warning label with tape and a piece of paper); Ryan v. Arrow Leasing Corp., 260 A.D.2d 565, 566 (2d Dept. 1999) (manual specification that clevis pin should be used sufficient to satisfy duty to warn); • the manufacturer was unaware of the modification at issue and neither knew of nor approved modifications similar to the one at issue. Scardefield v. Telsmith, Inc., 267 A.D.2d 560, 561 (3d Dept. 1999); Vergara v. Scripps Howard, Inc., 261 A.D.2d 302, 304 (1st Dept. 1999). As stated by the Eastern District of New York, “[t]he fact that plaintiff suffered the consequences of what may have been a common practice at [his employer] does not justify imposing liability upon the defendant [manufacturer] for these injuries where nothing suggests that defendant was aware of that practice.” Cacciola v. Selco Balers, Inc., 127 F. Supp. 2d 175, 191 (E.D.N.Y. 2001). Additionally, Liriano reiterated that there is a class of dangers so inherently dangerous that they need not be warned against as a matter of law because they are open and obvious. Thus, “[w]here a danger is readily apparent as a matter of common sense there should be no liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent as a warning would have provided.” Liriano, 92 N.Y.2d at 242. “Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question.” Id. This does not foreclose summary judgment on the issue on the right set of facts. In Felle v. W.W. Grainger, Inc., the Fourth Department held that as a matter of law, a plaintiff with seven years experience operating a grinder “should have appreciated the danger of placing his face in proximity to a rapidly rotating and completely unguarded split or hinged sanding wheel. The open and obvious nature of the risk negates any duty to warn on the part of defendants.” 302 A.D.2d 971 (4th Dept. 2003); Scardefield, 267 A.D.2d at 238 (“Supreme Court found, and we cannot disagree, that the risk of placing one’s hand near an operating gear is an obvious one”). If you have any questions, please contact any of the following members of our Litigation Department: In Central New York, call 315-218-8000 or e-mail: Thomas D. Keleher John G. McGowan tkeleher@bsk.com jmcgowan@bsk.com In the Capital District, call 518-533-3000 or e-mail: Carl Rosenbloom Arthur J. Siegel crosenbloom@bsk.com asiegel@bsk.com In Western New York, call 716-566-2800 or e-mail: Robert A. Doren Richard C. Heffern Visit our web site – www.bsk.com rdoren@bsk.com rheffern@bsk.com