N.Y.'s highest court clarifies defective design defense requirements

Jessica M. Karmasek May 13, 2011, 11:15am


ALBANY, N.Y. (Legal Newsline) - The New York Court of Appeals says a defendant moving for summary judgment in a defective design case must do more than state its product is inherently dangerous and that its dangers are well known.

The state's highest court, in an opinion filed Tuesday, said to be entitled to a 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.

The defendants in the case, including Reckitt & Colman Inc. and 55th Realty Inc., failed to make such a showing, the Court said.

The product at issue is called Lewis Red Devil Lye, or RDL. RDL is 100 percent sodium hydroxide, a chemical compound commonly known as lye. The product is sold in the form of dry crystals, and it is packaged and marketed as a product that clears clogged drains.

The plaintiff in the case, Yun Tung Chow, was injured while using RDL to clear a clogged floor drain in the kitchen of the Manhattan restaurant where he worked.

He cannot read English and testified through an interpreter that, although he had used RDL many times in the past, he never read the instructions and warnings printed on its bottle. Instead, he learned how to handle RDL by following the examples of others.

Normally, he testified, he would take one spoonful of RDL, add one cup of water and then pour that solution down the clogged drain. Then, he would flush the drain with water and the drain would clear.

However, in one instance after doing so, the product splashed back onto his face, leaving him with serious burns and lost sight in his left eye.

Following the incident, Chow and his wife filed a products liability action.

The defendants, who stressed that Chow's handling of the product was not in accordance with the label's instructions and warnings, moved for summary judgment and the state Supreme Court granted the motion.

The appellate division affirmed and the plaintiffs then appealed to the Court of Appeals.

Chief Judge Jonathan Lippman, who authored the Court's seven-page opinion, said the defendants did not demonstrate their entitlement to judgment as a matter of law.

"While it is true that lye is dangerous and that this product is lye, a mere statement in an attorney's affirmation in support of a motion for summary judgment to that effect does not result in a shift of the burden to plaintiff to then explain how RDL could be made safer," the Court wrote.

"At this stage, defendants cannot rely simply on the fact that their product is what they say it is and that everyone knows that lye is dangerous; that only begs the question at the heart of the merits of the defective design claim: 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? Defendants offered no answer to this question."

The plaintiff's mishandling of the product, alone, is not enough to entitle the defendants to summary judgment, it said.

Summary judgment in a strict products liability case may be granted on the basis of the plaintiff's conduct when the plaintiff's actions constituted "the sole proximate cause" of his or her injuries, the Court explained.

The Court reversed the appellate division's order, with costs, and denied the defendants' motion for summary judgment.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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