Corporate Counsel
Litigation Newsletter
July 2003
Bond, Schoeneck & King, PLLC
New York
Albany § 518-533-3000
Buffalo § 716-566-2800
Oswego § 315-343-9116
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Overland Park § 913-234-4400
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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