Products Liability Pointers - Volume I, No. 1


Volume I, No. 1

Wednesday, January 15, 2020
A Monthly Electronic Newsletter


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As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly e-newsletter providing summaries of and access to the latest products liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.



Strict Products Liability
Design & Manufacturing Defects
Failure to Warn
Breach of Warranty
Medical Device Litigation
Governmental Agencies and Regulations
Toxic Torts, Asbestos and Lead Paint



Welcome to the inaugural edition of Products Liability Pointers, a monthly newsletter providing summaries of and access to the latest product liability decisions from across New York State.  We are publishing this newsletter to keep our clients and subscribers up-to-date with the latest developments and trends, and to provide useful practice tips and litigation strategies. 
We will be reporting once a month, on the third Wednesday of each month, covering all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, and governmental agencies and regulations.  All issues of Products Liability Pointers can be found on the firm website at
Hurwitz & Fine, P.C. has extensive experience representing manufacturers, sellers, distributors, and retailers of diverse products, including consumer goods, recreational equipment, intricate medical devices and complex industrial machinery, in a full range of product liability matters. With offices in Buffalo and Long Island, we have bookended New York to provide statewide coverage in handling these claims.
In each issue, Editor V. Christopher Potenza will be reporting on design defect, and Editor Brian F. Mark will be reporting on manufacturing defect claims.   Brenna C. Gubala will be providing the analysis and review of failure to warn cases, and Marina A. Barci will address toxic torts, asbestos, and lead paint.
In addition to this newsletter, we offer seminars for anyone interested in additional training on any aspect of handling product liability cases.
Please let us know if there are any other individuals, inside or outside of your organization, who may benefit from receiving Products Liability Pointers.  New subscribers are always welcome!
We hope you find something useful and informative in each and every issue.  We are always available to discuss any topic in person.  Thank you for reading, and please know that any feedback is both welcome and appreciated.
V. Christopher Potenza and Brian F. Mark, Editors




Design Defects
By: V. Christopher Potenza
[email protected]

The law on strict products liability in New York is that a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product. 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, is unreasonably dangerous for its intended use, and whose utility does not outweigh the danger inherent in its introduction into the stream of commerce.  In a design defect case, the question for the jury is whether, after weighing the evidence and balancing the product's risks against its utility and cost, the product as designed is not reasonably safe.  The factors the courts have identified as relevant to the jury's risk-utility analysis are:

  • the product's utility to the public as a whole and to the individual user;
  • the nature of the product (likelihood that it will cause injury);
  • the availability of a safer design;
  • the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced;
  • the ability of the plaintiff to have avoided injury by careful use of the product;
  • the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and
  • the manufacturer's ability to spread any cost related to improving the safety of the design.

For this inaugural issue, we are looking back at some of the more noteworthy decisions from 2019.  The Court of Appeals, in fact, issued two significant product liability decisions in 2019. 

In Fasolas v. Bobcat of New York, 33 N.Y.3d 421(2019), the Court of Appeals affirmed that product manufacturers and distributors can be relieved of strict product liability in New York from design defect claims where the manufacturer offered the product with an optional safety device and the purchaser chose not to buy it, regardless of whether the product was sold directly to the end-user or came into the injured end user's hands through the rental market or intermediary. Click here for a more detailed analysis of this decision.

In Terwilliger v. Beazer East, Inc., et al, 33 N.Y.3d 488 (2019), the Court of Appeals addressed a question that I am sure keeps you up a night: whether an industrial coke oven is a “product” or “structure” for purposes of strict products liability and duty to warn.  Click here for a more detailed analysis of this decision.

Other noteworthy decisions in this edition include a multi-million dollar verdict upheld on appeal sustaining plaintiff’s expert opinion on design defect of a motorcycle’s electrical system, a dismissal against a manufacturer where the consumer removes a safety guard, two conflicting decisions addressing the minefield that is personal jurisdiction over foreign corporation, and a case of a hand-written note identifying potential suppliers of a product deemed too speculative to hold a party liable.

And now for this month’s shameless dad joke:

What is black and white and red (read) all over?
Product Liability Pointers!

3/15/19            Estate of Smalley v. Harley–Davidson Motor Company Group LLC
Appellate Division, Fourth Department
Not a Shock: Appellate Division upholds plaintiffs’ verdict on defective design claim of motorcycle electrical system.
Harley–Davidson appealed from a $2 million verdict in Monroe County in a case in which it was alleged that the motorcycle on which both plaintiffs were riding lost power, leading to serious injuries to both riders.   The Fourth Department rejected Harley–Davidson’s argument that the trial court should have granted its motion for a directed verdict at the close of plaintiffs' proof.
Plaintiffs alleged that their motorcycle was defectively designed because it had a 40–amp circuit breaker in its electrical system, rather than a 50–amp circuit breaker. Plaintiffs asserted that, although the circuit breaker itself was not defective, the electrical system allegedly produced excessive amperages that caused the circuit breaker to trip and shut off the engine and that the problem was more likely to happen with a 40–amp circuit breaker. Plaintiffs' evidence at trial established that relevant models of plaintiffs' motorcycle were recalled by Harley–Davidson because, according to the recall notice, they had a condition whereby the 40 amp main circuit breaker could cause an unexpected interruption of all electrical power to the motorcycle. The specific motorcycle at issue in this case however was not subject to the recall. Plaintiffs’ expert testified that, although this model was not subject to the recall, it should have been because it was in all respects identical to the recalled models that undisputedly had a design defect.
Contrary to the contention of Harley–Davidson, the evidence presented by plaintiffs did not conclusively establish that the accident was caused by driver error. The Fourth Department held that based on the evidence offered by plaintiffs, it cannot be said that it was irrational for the jury to conclude that plaintiffs experienced a “quit-while-riding” incident and that the stalling of the engine was a substantial factor in causing the accident and plaintiffs' resulting injuries. Nor was it irrational for the jury to accept the opinion of plaintiffs' expert that the motorcycle had a design defect due to its use of a 40–amp circuit breaker.

08/22/19          Beechler v. Kill Bros. Co.,
Appellate Division, Fourth Department
Changing of the Guard: Removal of safety guard on farm equipment by consumer results in dismissal of design defect claim.
Plaintiff was working inside of a piece of farm equipment known as a grain cart when she lost her footing and her right leg became caught in a rotating auger.  The Fourth Department reversed and granted the motions for summary judgment of the manufacturing defendants.   
These defendants presented an expert opinion that plaintiff's injuries would not have occurred if the steel safety guard had not been removed.  The Court found that these defendants established their entitlement to summary judgment dismissing the strict products liability causes of action predicated on a design defect theory by submitting evidence that the product was reasonably safe in that the steel safety guard was manufactured in accordance with industry standards, was designed to last the life of the product, and was "state of the art" inasmuch as it was permanently welded to the interior of the grain cart and could not be removed except by using an acetylene torch or other such heavy-duty tool. Plaintiffs failed to raise an issue of fact as to whether the grain cart, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.  Although plaintiffs' expert averred that certain features of the grain cart violated industry standards, none of those standards were applicable to this case.
08/22/19          Nowell B. v. Hamilton Med., Inc.
Appellate Division, Fourth Department
New York State of Mind: Sales of medical devices by foreign corporation through U.S. distributor to New York hospitals is sufficient to confer long-arm jurisdiction.
Plaintiff commenced this action against several defendants seeking damages for injuries sustained by her infant son after he suffered from bilateral pneumothoraxes that resulted in a severe brain injury. Plaintiff alleged that the child was on a ventilator, which was defectively designed or improperly manufactured by HMAG, and that the defective ventilator caused the child to suffer the bilateral pneumothoraxes.  HMAG contested jurisdiction as it is a Swiss corporation organized and existing under the laws of Switzerland with its principal place of business in Switzerland. HMAG designed and manufactured ventilators, which were sold in the United States by HMI, a wholly-owned subsidiary of HMAG that is organized and based in Nevada.
The Fourth Department affirmed the denial of the motion of HMAG to dismiss the complaint against it based on lack of personal jurisdiction. In determining whether the exercise of personal jurisdiction over a nondomiciliary defendant is proper, a court must assess whether the requirements of New York's long-arm statute have been met and, if so, whether a finding of personal jurisdiction comports with federal due process.  The conferral of jurisdiction under CPLR 302(a)(3)(ii) rests on five elements: First, that defendant committed a tortious act outside the State; second, that the cause of action arises from that act; third, that the act caused injury to a person or property within the State; fourth, that defendant expected or should reasonably have expected the act to have consequences in the State; and fifth, that defendant derived substantial revenue from interstate or international commerce. 
After concluding that HMAG's relationship with New York came within the terms of CPLR 302 (a)(3)(ii), the Court assessed whether the exercise of personal jurisdiction comports with federal due process.  It is well established that the exercise of personal jurisdiction under the long-arm statute must comport with federal constitutional due process requirements.   A defendant must have minimum contacts with the forum state such that the defendant should reasonably anticipate being haled into court there, and, second, the maintenance of the suit against the defendant in New York must comport with traditional notions of fair play and substantial justice.  The Court concluded that HMAG has the requisite minimum contacts with New York based on sales history in the state through its subsidiary, the exclusive distributor of HMAG products in the United States. The Court further concluded that the exercise of personal jurisdiction over HMAG comports with traditional notions of fair play and substantial justice as plaintiff is a New York resident whose infant was injured in New York and may be entitled to relief under New York law, and to allow plaintiff to sue all named defendants in New York in a single action would promote the interstate judicial system's shared interests in obtaining the most efficient resolution of the controversy. 

10/16/19          Grandelli v. Hope Street Holdings, LLC
Appellate Division, Second Department
Pump the Brakes: Manufacturer of elevator component part brake not subject to long-arm jurisdiction in New York.
The Second Department reversed the trial court and dismissed the claim against a French component part manufacturer for lack of jurisdiction. 
The decedent plaintiff’s estate commenced this wrongful death action alleging that the decedent died as a result of an elevator malfunction when he was attempting to exit the elevator. Defendant Warner Electric Europe SAS is a French company which manufactured the brakes that were incorporated as component parts into the device that controls the speed of the electrical motor in the elevator. Warner Europe moved pursuant to CPLR 3211(a)(8) to dismiss for lack of personal jurisdiction.
The Second Department found that Warner Europe established that it did not expect or reasonably should have expected its production of brakes to have consequences in New York. Warner Europe established that it does not sell the elevator brakes it manufactures in France to any customers in New York or contract with any other company to distribute its elevator brakes to customers in New York. Instead, it sells its elevator brakes as component parts to other manufacturers which incorporate them into A.C. drives, which are then sold to other manufacturers that incorporate the A.C. drives containing the elevator brakes into elevator systems. Warner Europe also established that it has no knowledge of the end users of the elevator brakes, and that it does not sell replacement elevator brakes or component parts to the end-user customers who purchased the elevators into which they were incorporated. Warner Europe also established that its products were neither sold nor advertised online. Finally, Warner Europe showed that it has no real or personal property in New York, no registered agent or telephone number in New York, and no bank or investment account in New York, and that it does not advertise in New York. Thus, the record does not support a finding that Warner Europe knew or reasonably should have known that its manufacture and sale of elevator brakes would have a direct consequence in New York such that long-arm jurisdiction could be exercised.
01/30/19          Tyminskyy v Sand Man Bldg. Materials, Inc.,
Appellate Division, Second Department
Pass on the Note: Hand written document from retailer identifying potential suppliers of product insufficient to create issue of fact as to supplier that denied it was in chain on commerce.
A basic tenant of strict products liability is that the plaintiff must be able to identify the manufacturer, wholesaler, distributor, or retailer who allegedly sells the product in a defective condition.  In this case, the plaintiff claimed that he sustained personal injuries when the rolled steel wire mesh he was using to reinforce poured concrete for a sidewalk allegedly recoiled and struck him in the back of his neck. The plaintiff purchased the mesh from the defendant Sand Man Building Materials, Inc., but did not know who supplied the mesh to Sand Man. In a pre-action discovery proceeding, Sand Man produced a hand-written note containing the names of two potential suppliers of the mesh.

One of the parties identified on the note, Prime Source, moved for summary judgment by demonstrating that it was outside the manufacturing, selling, or distribution chain of the mesh.  The trial court denied the motion, but the Second Department reversed, holding that the plaintiff’s attorney’s affirmation attaching the hand written note from Sand Man was insufficient to raise a triable issue of fact because it did not establish that it was reasonably probable, not merely possible or evenly balanced, that Prime Source, rather than the other supplier, was the source of the mesh.

While the identity of the manufacturer or supplier of a defective product may be established by circumstantial evidence, speculative or conjectural evidence of the manufacturer's identity is not enough.  


Manufacturing Defects
By: Brian F. Mark
[email protected]

In New York, a manufacturer of a (product/component part) owes a duty to use reasonable care in the manufacture of the (product/part) so that it will be reasonably safe for its intended or foreseeable uses.  Reasonable care means that degree of care that a reasonably prudent manufacturer of such a (product, part) would use in the making, inspecting and testing of the (product, part) and its materials (and parts) in order to produce a reasonably safe product. 

To establish a prima facie case of liability based on a manufacturing defect, a plaintiff must prove: (1) did not perform as intended; (2) was defective when it left the manufacturer's control; and that the defect was a proximate cause of the plaintiff’s injury.  To prove that the product was defective when it left the manufacturer’s control, a plaintiff must show that the product was not built to specifications or that the product, as constructed, deviated from any such specifications or design.  In a manufacturing defect claim, the essential element of the claim is that a product caused injury because it did not perform as intended, while another product of the same design did not fail. 

In this first edition, we address a state court appellate decision on an expert’s failure to identify a particular manufacturing defect in a claim concerning a defective fuel pump nozzle,  and a district court decision in which plaintiff failed to compare a an allegedly defective valve used in a power generating unit to others in the same product line.

07/31/19          Menear v. Kwik Fill
Appellate Division, Fourth Department
Hard to Handle: Gas tank nozzle manufacturer establishes that its product was not defective.
The plaintiff, Trudy Menear, a limousine company employee, was allegedly injured while refueling a bus at a gas station owned by the Kwik Fuel defendants.  After pulling up to a diesel fuel dispenser, she put the nozzle of the pump into the fuel tank, engaged the hold-open clip located on the nozzle, and waited while the bus refueled.  Fuel began to spill out of the filler neck at the gas cap.  She disengaged the hold-open clip, manually stopped the flow of fuel, and waited for the pressure to subside.  After 20 or 30 seconds, she removed the nozzle, and diesel fuel ejected from the fuel tank, spraying her body, face, and eyes.
Thereafter, the plaintiff filed an action against the Kwik Fill defendants, and a separate action against Husky (manufacturer of the nozzle) and the Coach defendants (manufacturers of the bus), seeking to recover damages for injuries that plaintiff sustained in the accident.  Husky filed a motion for summary judgment seeking to dismiss the complaint.  The trial court denied Husky’s motion and Husky appealed.
The Fourth Department reversed the trial court and held that Husky met its initial burden of establishing entitlement to judgment as a matter of law by submitting evidence that its product was not defective and that it was reasonably safe for its intended use.  Husky's expert examined the nozzle, determined that the nozzle's automatic shut-off was functional, and opined that the nozzle was not unreasonably dangerous for its intended purpose and thus was not defective.  Husky’s president testified that its manufacturing processes complied with industry standards, and that every Husky nozzle was tested prior to leaving the factory.
The Coach defendants had opposed Husky’s motion by submitting the affidavit of an expert and the deposition testimony of the vice president of engineering of defendant Motor Coach Industries, Ltd.  The expert opined that the accident was caused by a nozzle malfunction, but did not, however, identify any particular defect in the nozzle, which he did not inspect. As such, the Court concluded that the expert's opinion was based on mere speculation and was insufficient to raise an issue of fact.  Furthermore, the vice president testified that the Coach defendants received complaints about diesel fuel ejecting from the filler necks on these busses due to apparent fuel tank venting and pressurization issues and took action to correct this problem.  As the expert failed to exclude improper venting and pressurization of the fuel tank as a potential cause of plaintiff's accident, the Court held that the expert failed to raise an issue of fact in that regard.
The remaining theories of liability against Husky also failed. The Court concluded that because Husky manufactured a product that was not defective, it had no duty to warn end users that its product might pose a danger if used to refuel an improperly vented fuel tank.
08/02/19          Astoria Energy II LLC v. HH Valves LTD.
US District Court, Eastern District of New York
No Comparison: Magistrate recommends dismissal of manufacturing defect claim as there was no allegation that valve was defective as compared to other identical units in the same product line.

The plaintiff owns and operates a power plant, where it produces energy from a generating unit (“the Unit”).  The Unit is composed of a series of turbines, each containing various valves, one of which is the valve at issue (the “Valve”).  Incorporated into the Valve itself are certain disc retainers.  Around October 2014, a routine inspection revealed that “foreign objects and particulate material that originated from disc retainers” had become lodged in one of the turbines, damaging portions of the Unit.  The Valve’s disc retainers were apparently liberated during normal operation, and the material contained therein traveled to an unintended location deeper in the Unit.  As a result, the plaintiff was required to open the Unit for further inspection and repair, causing the plaintiff to incur significant costs.

The Valve was manufactured by the defendant HH Valves.  After multiple unanswered attempts to contact and engage the defendant, the plaintiff moved for default judgment on its claims of strict products liability and negligence.

The complaint alleged that “the Valve was defectively designed and manufactured and unreasonably dangerous in light of its foreseeable intended uses.”  However, the Court noted, that the defect was most plausibly due to either a manufacturing or a design defect.  Thus, the Court analyzed each claim as though they were pleaded in the alternative, which was consistent with the complaint’s allegation that the Valve’s disc retainers were not “designed” to prevent such liberation or the Valve’s disc retainers were not “otherwise installed” (i.e., manufactured) to prevent such liberation.

In order to state a manufacturing defect claim, a plaintiff must allege or show that the subject unit “differed when compared to other [units]”—identical but for the defect—“in the same product line.”  The plaintiff attempted to establish its manufacturing defect claim by alleging that the disc retainers were not “otherwise installed in a manner so as to prevent liberation,” but it did not allege that the Valve was defective as compared to other identical units.  Rather, the plaintiff relied solely on circumstantial evidence, inferring the existence of a manufacturing defect from the fact that the damage resulted from “foreign objects and particulate material that originated from the disc retainers.”

The Court acknowledged that courts may permit pleading based solely on circumstantial evidence where the plaintiff is able to exclude other possible causes of harm not attributable to the defendant.  However, in the matter at bar, the plaintiff failed to rule out other causes of the damage to the Unit.  Consequently, the Court stated that oblique inferences from circumstantial evidence were insufficient to support the plaintiff’s claim.

The complaint’s brief, offhand references to a defect did not provide enough factual content to plausibly support a manufacturing defect claim.  Accordingly, the Court held that due to the plaintiff’s failure to plead that a deviation from the product line caused the harm, the plaintiff could not assert such a claim.  As such, the Magistrate Judge recommended that the District Judge deny the plaintiff’s motion for default judgment on the manufacturing defect claim.


Toxic Torts, Asbestos, and Lead Paint
By: Marina A. Barci
[email protected]

Hello Readers!
Welcome to the first edition of Products Liability Pointers. As you can see from the title of my column, my contribution to this newsletter is to bring you information about toxic exposure cases. While I will typically focus on cases in NY, if there is relevant news from around the country, as there is this month, I’ll let you know about that too. We bring this topic over to Products Pointers from Premises Pointers, where editor-in-chief Chris Potenza did a tremendous job keeping up to date on the toxic exposure news. In this issue, I highlight several decisions from the last year so you can see what the trends have been like, and if you are interested in reading more about the pertinent toxic exposure news over the last two or so years, check out previous Premises Pointers editions. Going forward, you can find it all right here.
After that intro, I’ll tell you a bit about myself. Here at H&F, I work in our General Liability, Products, Premises, Toxic Tort, Auto, and No-Fault Insurance groups. Outside of work, I spend my free time in the winter months coaching a high school mock trial team and trying to get on the ski slopes as much as possible (which, honestly, is not that often). In the warmer months, I spend a lot of time exploring Buffalo’s great restaurant scene, perusing art/craft festivals, and hiking around the area. Each month, I’ll try to give our Readers a glimpse into my happenings and recommend places that they should visit as well (I take recommendations too, so please email them to me!).
For this column, I bring back a disturbing but important lead paint decision from the Fourth Department last June that addressed the defense burden in establishing a statute of limitations defense in a childhood lead paint exposure case.  There is a favorable decision from the Second Department also addressing the statute of limitations discovery of injury rule in a claim for contamination exposure-related injuries to property.  In another disturbing decision, the Court of Appeals found that a general release executed to resolve a prior non-malignant claim did not preclude a later claim for asbestos-related mesothelioma.   Also addressed are two decisions from the First Department that drastically reduce the monetary awards in NYCAL asbestos verdicts, but nonetheless still establish a very high benchmark for the value of these claims.  
06/07/19          Chaplin v. Tompkins
Appellate Division, Fourth Department
Time is Not on Your Side: Defendants must establish accrual date for a claim for injury caused by the latent effects of childhood lead paint exposure to succeed on statute of limitations defense.
Generally, an action to recover damages for personal or property injuries must be commenced within three years of the injury. However, in latent toxic exposure claims, such as lead paint and asbestos, pursuant to CPLR § 214-c, the three-year period within which an action to recover damages for injuries to a person or property caused by the latent effects of exposure to any substance or combination of substances is be computed from the date of discovery of the injury by the plaintiff or from the date when, through the exercise of reasonable diligence, such injury should have been discovered by the plaintiff, whichever is earlier. “Discovery” of the injury occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based.  In childhood exposure cases, the statute is tolled until the age of majority (18). In practice, this often results in claims filed by adults aged 18-21 from exposures that happened in their infancy or toddler years.  Recently, as happened in this case, plaintiff’s having been pushing the envelope and filing claims well beyond their twenty-first birthday. 
In a troubling short and vague opinion, the Fourth Department reversed the trial court’s decision to dismiss the lead paint claims against both property owners on statute of limitations grounds.  The Fourth Department held that neither defendant established the relevant accrual date of plaintiffs' claims for injury caused by the latent effects of lead paint exposure and, in the absence of such evidence, neither defendant made a prima facie showing that the applicable limitations period had expired on those claims.  With this decision, the Fourth Department places the burden of establishing when the injury was discovered or should have been discovered by the plaintiff squarely on the shoulders of the defendant.
6/18/19            Matter of Murphy-Clagett v A.O. Smith Corp.
Appellate Division, First Department        
5/16/19            Ford v. A.O. Smith, et al.
Appellate Division, First Department        
Show Me the Money: First Department reduces excessive mesothelioma awards.

In Murphy-Clagett, the jury awarded the estate of the decedent plaintiff Pietro Macaluso $25 million for the decedent's pain and suffering, $17 million to the decedent's son for loss of parental guidance, and $18 million to the decedent's daughter for loss of parental guidance.  The First Department found that these damages awards deviate materially from what would be reasonable compensation and remanded for a new trial on damages unless plaintiff stipulated to reduce the damages for the decedent's pain and suffering to $4 million, the award for loss of parental services for the decedent's son to $1 million, and the award for loss of parental services for the decedent's daughter to $1 million.
Similarly, in Ford, the jury awarded the now deceased plaintiff Frank Gondar $12 million for past pain and suffering and $10 million for future pain and suffering.   After remittitur, plaintiff, stipulated to an award of $5 million for past pain and suffering over a period of 17 months, and $2 million for future pain and suffering for one month.  The First Department unanimously modified, and vacated the award for future pain and suffering only, and ordered a new trial of those damages, unless plaintiff stipulates to reduce the award for future pain and suffering to $500,000.  While this appears to be a victory as $500,000 is certainly well-below $10 or even $2 million, this case would nonetheless appear to set a pretty high bar for damages calculations on mesothelioma claims at $500,000 per month.
10/16/19          Onder Realty, Inc. v. Keyspan Corp.
Appellate Division, Second Department
Bothered in Bay Shore: Property contamination exposure injuries follow same statute of limitations rules as other latent exposure injury claims.
Plaintiff is a corporation that formerly owned property in Bay Shore, NY. Plaintiff sued the defendants seeking to recover damages for injury to the subject property resulting from alleged contamination emanating over the course of decades from a former site of a manufactured gas plant, and from subsequent remediation work performed by the defendants. The defendants moved to dismiss several causes of action against them as time-barred, or in the alternative on the merits.
Here, the defendants established the untimeliness of the causes of action to recover damages for exposure-related injuries by demonstrating that they undertook extensive efforts beginning in 1999 to inform and engage with property owners potentially affected by the contamination and remediation by conducting, among other things, door-to-door canvassing, direct mailings of newsletters and fact sheets, numerous public meetings, and highly visible and disruptive remediation work. The defendants also inspected the subject property twice in 2005 to determine whether certain remediation work between those inspections caused any damage and mailed the results of their inspections to the plaintiff in 2006. The defendants also submitted testimony of the plaintiff's principal, who conceded his awareness of both widespread remediation work in Bay Shore and public meetings the defendants held to discuss the contamination and remediation, and who described himself as an active investor in property in the Bay Shore area who was very knowledgeable about current events in the community.
Thus, the defendants established that the plaintiff should have discovered, through the exercise of reasonable diligence, the primary condition upon which its exposure-related claims were based prior to January 22, 2007 (which was exactly three years prior to the filing of the complaint). Plaintiff failed to identify any misrepresentations made by the defendants that induced it to refrain from timely commencing the action or show that the contamination independently resulted in some new injury within the statute of limitations period that was distinct and qualitatively different from prior injuries. Therefore, those causes of action were time-barred.
However, the defendants were not successful in proving, as a matter of law, that the plaintiff’s causes of action to recover damages for public and private nuisance allegedly arising from the defendants' remediation work were time-barred. There was no dispute that the defendants conducted remediation work in close proximity to the subject property shortly after new tenants signed a lease to occupy the space in 2008, and the plaintiff's principal testified at a deposition that he and the plaintiff's former tenant regularly felt vibrations from digging and from passing trucks and smelled foul odors emanating from the remediation worksite within the applicable limitations period. The plaintiff's principal also observed cracks on the subject property that he believed were a result of the vibrations. Therefore, the defendants failed to establish as a matter of law that those causes of action which sought to recover damages for public and private nuisance allegedly resulting from remediation work were time-barred.

02/21/19            In re New York City Asbestos Litigation, South v. Chevron Corp, et al.
Court of Appeals
When a Release is Not a Release: Court of Appeals affirms finding that General Release executed to resolve prior non-malignant claim does not preclude a later claim for asbestos-related mesothelioma.
The decedent plaintiff alleged that his mesothelioma was caused by exposure to asbestos during his 37-year career as a merchant marine and that defendant Chevron/Texaco manufactured, produced, sold, supplied, merchandised and/or distributed asbestos-containing products that were located on the ships plaintiff worked on. Texaco moved to dismiss on the basis that plaintiff had previously executed a General Release to Texaco in a prior asbestos related lawsuit in 1997. The release included any "bodily and/or personal injuries, sickness or death" which allegedly occurred as a result of plaintiff's asbestos exposure. The release acknowledged that the "long term effects of exposure" to asbestos might result in "obtaining a new and different diagnosis from the diagnosis as of the date of this Release."
As plaintiff’s claims were brought pursuant to the Jones Act (46 USC § 30104 et seq.), the prior release faced the scrutiny of § 5 of the Federal Employers' Liability Act (FELA) (45 USC § 55), which requires strict scrutiny of releases and prohibits agreements that exempt common carriers from liability. Under that standard, plaintiff asserted that, at the time the prior release was signed, he did not have mesothelioma and was not aware of the risk of mesothelioma as a potential injury from his asbestos exposure. Since this was an admiralty (maritime law, or the laws involving navigable waters and ships) case, Texaco had the burden of establishing that the release is enforceable and that plaintiff fully understood his rights and received adequate consideration.
The First Department ruled that the release does not explicitly mention that plaintiff was forbearing any claim against Texaco specifically for mesothelioma. The First Department also determined that the 1997 complaint, while making generalized allegations that plaintiff had been exposed to asbestos, was exceedingly vague as to whether plaintiff had actually contracted an asbestos-related disease, and, in the court’s opinion, the consideration received in exchange for the prior release was “meager.” The Court of Appeals affirmed, explicitly stating however that “[t]o be clear, it is possible that additional evidence could be developed that would validate the release and extinguish plaintiffs' claims. However, applying the heightened standard in the summary judgment posture, the record is presently insufficient to demonstrate the effectiveness of the 1997 release as a matter of law.”
While this decision is certainly troublesome, we should remember that the prior release was scrutinized under the heavy FELA standard. It should be a caution to all, however, to not take releases lightly, and to attempt to ensure they will withstand later scrutiny.



Failure to Warn
By: Brenna C. Gubala

Hi. I’m super excited to join the team at H&F, bringing over eight years of experience handling general liability, products, premises and auto claims.  I am especially honored to be a contributing editor to H&F’s latest (and greatest ? ) publication.   I will be covering failure to warn in strict products liability cases.  This topic reminds me of my favorite NPR show “Wait Wait…Don’t Tell Me!”, except here we are dealing with “Wait Wait… You Didn’t Tell Me!”
The law on strict products liability in New York predicated on a failure to warn is for the most part indistinguishable from a negligence cause of action. The manufacturer of a product which is reasonably certain to be harmful if used in a way that the manufacturer should reasonably foresee is under a duty to use reasonable care to give adequate warning of any danger known to it or which in the use of reasonable care it should have known and which the purchaser of the product ordinarily would not discovery.  Reasonable care means that the degree of care which a reasonable prudent person would use under the same circumstances
In order to prove a prima facie case, a plaintiff must demonstrate that the alleged absence or inadequacy of warnings regarding the use of the product was a substantial cause of the plaintiff's harm. Although the issue of proximate cause is usually for the finder of fact, where only one conclusion may be drawn from the established facts that issue may be decided as a matter of law.
It is important to remember however failure to give adequate warnings may not lead to liability where the purchaser or user is already aware of the hazard.  Furthermore, as demonstrated in some of the cases we highlight this month, a purchaser or user need not be warned of hazards that are readily apparent through general knowledge, observation, or common sense.  
In this column, I intend to help with practical points for defending these types of cases and discuss the analysis by the New York courts.  Many of these cases however involve products and situations you may find yourself in at work, at home, or anywhere in between. Interacting with products is something we all do, so pay attention (always) to the products you use and the facts presented to you, to better address every situation.
A final word about this inaugural issues’ cases: whether at work, in the kitchen, in a lake, or snow blowing your driveway, look where you’re going and don’t put your hands near moving parts!  Please reach out if you have any questions or come across an interesting case!
11/16/19                      Samyn v. Ariens Co.    
Appellate Division, Second Department
Captain Not-So-Obvious: Question of fact as to whether warning was sufficiently specific to make plaintiff aware of danger of placing hand in snow thrower.   
You have to be specific. Plaintiff alleged he lost two fingers when he placed his hand inside the discharge chute of his snow thrower (a small snowblower, for those of you who don’t know, and I didn’t know) to dislodge a blockage.  The Supreme Court granted defendant’s motion for summary judgment on the failure to warn claim. The Appellate Division reversed and denied the motion.
Plaintiff had released the clutch lever, turned off the engine, waited 5 seconds and after hearing no noise from the machine, placed his right hand inside the discharge chute of a snow thrower and came into contact with the still-moving blade which was still rotating at a high speed. The snow thrower had labels warning of “rotating parts” and to “stop engine and remove spark plug ignition before removing obstructions.” The owners’ manual included warnings not to “put hands or feet near rotating parts” and to use a “broom handle” to dislodge an obstruction from the impeller.
Plaintiff alleged a failure to warn of the specific danger that the impeller blade could continue to rotate after the engine was turned off.  The Appellate Division held that defendant manufacturer failed to meet its burden of proof that it adequately warned of the specific danger that the impeller may continue to rotate even when the engine has been cut. In addition, defendant failed to establish the plaintiff was aware of the danger of putting his hand inside the discharge chute after turning off the engine, or that he would not have heeded more prominent or express warnings on the snow thrower.
11/10/19          Hernandez v. Asoli               
Appellate Division, Second Department
Hold the Cheese: Risk of sticking hand into spinning food grinder is open and obvious.
If you know, you know. Plaintiff alleged a failure to warn claim against the restaurant owner, equipment importer and distributer of a meat grinder. 
Plaintiff was employed as a dishwasher at an Italian restaurant.  The owner allegedly instructed him to grate a large cheese slab.  The restaurant had allegedly modified the meat grinder to spin continuously and not turn off automatically.  Plaintiff grabbed a block of cheese, put it in the grinder and put pressure on it. When the cheese appeared to get stuck, with the machine running and its blade still noticeably spinning, plaintiff put his hand inside the grater to “unstick” the cheese. The blade caught his hand causing the loss of several fingers. Plaintiff kicked the plug out of the socket with his foot.  He had used the meat grinder in the past to grate cheese. He learned to use it by watching other people but claimed he was not instructed other than to be careful.  There were warnings on the side in English but he spoke Spanish. There was also a picture on the side of the machine explaining worker safety, cautioning users to keep their hands clear while operating. The labels warn of the presence of “danger” and urge “caution” and “attention” while operating the machine. They also depict a hand being severed upon touching the rotating blade and a written warnings cautioning users to “Keep hand and fingers out of the machine and away from rotating oars when the machine is working.” The instruction manual contains similar warnings to “keep hands off turning parts” and the operator should “never use tools that do not belong to the machine during operation.”
The Appellate Division affirmed the Supreme Court’s granting of defendants’ summary judgment motion finding they met their burden of proof by establishing as a matter of law that they had no duty to warn plaintiff of the open and obvious danger of knowingly placing a hand into a cheese grater in close proximity to a spinning blade. What separates this case from Samyn v. Ariens Co. above I think is that in this case, the blade was visible to plaintiff and he admitted it.  In Samyn, the plaintiff could not see the rotating blade when he placed his hand in the chute.
Defendants submitted plaintiff’s deposition testimony in which plaintiff acknowledged being told to use caution when using the grinder to grate cheese; he failed to abide by the warning labels; he had used the machine before; he had seen coworkers use the machine; he had been reprimanded regarding his use of the grater; and he admitted he saw the spinning blade at the time he placed his hand in the machine.  Plaintiff failed to raise a material issue of fact in opposition.
1/16/19            Moscatiello v. Wyde True Value Lbr. & Supply Corp.       
Appellate Division, Second Department
Look Before You Leap:  Failure to warn claim against dock manufacturer dismissed as risk of diving into shallow water is open and obvious.
Look out. Plaintiff was a swim instructor and lifeguard at a YMCA sleepaway camp.  Plaintiff joined in an annual camp counselor relay race that included swimming. After he was “tagged” plaintiff ran into the lake and dove headfirst in what was clearly ankle-deep water.  This was caught on video recordings and in a photograph.  The swim section of the lake was demarcated by a 3-section dock and buoy lines which divided the swimming area into color coded swim “zones” of varying depths. The red zone was the shallowest swim zone.  Plaintiff dove in the red zone and was rendered a quadriplegic. Plaintiff brought claims against the YMCA, as well as the dock manufacturer and distributors on a failure to warn theory.
The Supreme Court denied plaintiff’s motion for summary judgment and granted defendants’ motion for summary judgment on a failure to warn claim. The Appellate Division affirmed, holding that plaintiff failed to establish that the absence or inadequacy of warnings regarding the use of the product was a substantial cause of the plaintiff's harm, while the defendants established that plaintiff was the sole proximate cause of the accident.  Plaintiff’s own deposition testimony established that he was familiar with the various color-coded swimming areas of the lake and was familiar with the danger of diving into shallow water.  He was also aware of the shallow condition of the water in the red swimming zone when he began his dive and acknowledged the depth of the water was 14 to 20 inches.


V. Christopher Potenza
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Brian F. Mark
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Marina Barci
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Brenna C. Gubala


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