The controversial contradiction between traditional precedent and recent failure to warn jurisprudence in New York.

AuthorKern, Dwight A.
  1. INTRODUCTION

    It is axiomatic that an entity is ultimately responsible to adequately warn about any hazards associated with the use of a product it manufactures, sells, or distributes. However, what liability issues arise when a relatively safe product is used in conjunction with a hazardous product manufactured by another company? Some attorneys maintain that a manufacturer of a sound product has a duty to warn about hazards associated with a separate manufacturer's product if the manufacturer knew or should have known that the dangerous product would be used in conjunction with its own product. The category of hazardous products used in conjunction with safe products includes items such as replacement parts, products that are components of larger systems, and, expansively, could include any other instance where a manufacturer could foresee its product being used in conjunction with another. Although New York law indicates that there is no duty to warn about the hazards of another entity's product, New York courts are struggling with this issue and a uniform resolution is necessary.

    This article discusses liability for "failure to warn" under New York products liability law, with a focus on whether a manufacturer has a duty to warn for a product in which it had no hand in introducing into the stream of commerce. We will examine how products liability law came into existence, both in the United States as a whole and in New York specifically; how liability for "failure to warn" developed as part of the doctrine; and how the narrow scope of the duty to warn in the majority of jurisdictions has been called into question in New York. Specifically, we will address the decision in Berkowitz v. A.C. & S., Inc., which muddied the waters by arguably implying that a manufacturer may have a duty to warn for products it did not manufacture, sell, or distribute. (1) The Berkowitz decision has had an impact, particularly in asbestos litigation, which may be incongruous with its actual representation of the law of the state, and we will explore whether such an influence is warranted. (2)

  2. PRODUCTS LIABILITY LAW GENERALLY

    Many have noted New York's role at the forefront of the creation of modern products liability law, dating back to Judge Cardozo's 1916 decision in MacPherson v. Buick Motor Co. (3) In MacPherson, a case involving a defectively manufactured automobile, Judge Cardozo noted that legal standards must adapt to a changing civilization and expanded a manufacturer's duty from only those with whom the manufacturer was in privity of contract (in the case of Buick, the car dealerships) to include the people that would actually be using the product. (4) Judge Cardozo's conception of products liability in MacPherson had roots in the doctrine of res ipsa loquitur, (5) and it was under that framework that courts applied the decision for nearly three decades. (6) This basis in res ipsa loquitur is evident in much of the basic reasoning behind products liability even today. (7) Unlike res ipsa, where the instrumentality causing the injury must be in the exclusive control of the defendant, most products change hands many times before they reach the consumer. (8) However, the logical underpinnings are the same: those parties that had a hand in placing the product into the stream of commerce (the manufacturer, the distributor, the seller, etc.) are the parties in the best position to prevent a defect that could potentially lead to injury. (9)

    The MacPherson decision gained wide acceptance throughout American jurisdictions, and remained at the forefront of products liability jurisprudence until 1944 when developments in the law shifted to the west coast of the United States. (10) In 1944, writing for the high court of California in a concurring opinion for Escola v. Coca Cola Bottling Co., Justice Traynor first advocated "absolute liability" for the manufacturers of defective products, arguing that manufacturers were better able to spread losses amongst their customers, and that strict liability would encourage safety research and development. (11) Later, after Justice Traynor had become Chief Justice, California became the first state to adopt strict liability in tort for defective products in Greenman v. Yuba Power Products, Inc. (12)

    Traynor,... writing for a unanimous court, held that because such liability was rooted in tort, it was not subject to technical defenses, such as a requirement of notice, that might be available in a contract or warranty action. Two years after the Greenman decision, the American Law Institute adopted the theory of strict products liability in Section 402A of the Restatement (Second) of Torts. Today, the basic principles of Section 402A are accepted in nearly every American jurisdiction. (13) As the products liability doctrine continued to develop, courts struggled with the definition of defect, eventually "enunciat[ing] three basic categories of defectiveness: manufacturing defects, design defects, and defectiveness because of a failure to warn." (14) Comparatively,

    [m]anufacturing defects have posed ... few problems of conception or application. Such defects were foremost in the minds of the formulators of the Restatement and were usually involved in the early cases. What generally distinguishes manufacturing defects from other types of product defects is that the product is not as the manufacturer intended it to be. (15) Strict liability for design defects has "proved to be [much more] controversial." (16) "[I]n the context of design defects, both commentators and courts have found it difficult to distinguish strict liability from negligence." (17) Where a difference is recognized, "the most important distinction is timing." (18)

    [N]egligence liability must always be based on what the defendant producer knew or should have known at the time the product entered the stream of commerce[. In contrast], under strict liability, information that only later became available is in many jurisdictions relevant to determining whether the product is defective.... [I]n some jurisdictions liability may be imposed even though there is no safer alternative design.... ...In terms of strict products liability, the more important category includes claims that the product could have been made safe, or at least safer, had adequate instructions been provided.... The importance of the duty to warn in product liability litigation should not be underestimated. A duty to warn of dangers posed by the product exists even though there is absolutely nothing wrong with the product. In other words, the failure to warn of inherent risks itself constitutes a defect. Thus, a duty to warn case comes much closer to imposing absolute liability than either of the other two liability theories. (19) Whereas manufacturers and distributors are strictly liable for harm caused by manufacturing defects, warning and design claims also sound in negligence. (20) Some courts resist the notion that the negligence doctrine plays a role in warning and design claims, taking quite seriously the notion that all three bases of products liability are "strict." (21) It should not be surprising, however, that negligence is at the root of warning and design claims. Pure strict liability is equivalent to liability without fault. Any claim of an intended warning, or a failure to warn, is inadequate and must practically imply that the manufacturer has breached a duty.

  3. THE DUTY TO WARN UNDER NEW YORK PRODUCTS LIABILITY LAW

    It is well-settled that a plaintiff may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its own product. (22) However, the New York Court of Appeals has historically declined "to hold that one manufacturer has a duty to warn about another manufacturer's product when the first manufacturer produces a sound product which is compatible for use with a defective product of the other manufacturer." (23) This position is echoed in decisions in many other jurisdictions. (24)

    The Restatement (Third) of Torts on products liability states that it will apply to "[o]ne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product." (25) The drafters reiterated this point in comment (c): "The rule stated in this Section applies only to manufacturers and other commercial sellers and distributors who are engaged in the business of selling or otherwise distributing the type of product that harmed the plaintiff." (26)

    Courts have consistently and emphatically held that a manufacturer does not have a duty to warn about another manufacturer's products, even though a third party might use both products in connection with each other. In reaching their determinations, courts throughout the United States have adhered to the fundamental principle that manufacturers do not have a duty to warn about another manufacturer's product. (27)

    In Kaloz v. Risco, the plaintiffs brought an action against a pool manufacturer for injuries sustained by an infant when the infant fell from a pool ladder and landed on a bucket near the foot of the ladder. (28) The plaintiffs claimed both failure to warn and negligence for the defective ladder, even though the pool manufacturer did not manufacture, install, or maintain the ladder. The court ruled that the failure to warn theory of liability could "not be stretched to require a warning as to a conjunctive product manufactured by another even though such other product may be a sine qua non to the use of the first." (29)

    The negligence claim in Kaloz was grounded "on an underlying duty owed to another the possible danger to whom is reasonably foreseeable as a result of the conduct of the alleged wrongdoer." (30) However, the court recognized "that even though a defendant [manufacturer] could have foreseen the accident[, the defendant] cannot be held liable for the consequences of the...

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