Chapter 5 Strategic Issues Concerning the Defense of Plaintiff’s Case

• Jurisdiction: New York

CHAPTER FIVE STRATEGIC ISSUES CONCERNING THE DEFENSE OF PLAINTIFF’S CASE Neil A. Goldberg, Esq.
John P. Freedenberg, Esq.

I. PROOF IN NEGLIGENCE ACTIONS

A. Design or Manufacturing Defect

A negligence claim focuses on the reasonableness of the manufacturer’s conduct in placing the product into the stream of commerce. A manufacturer of a product that is reasonably certain to be dangerous if it is defectively designed, manufactured or marketed, owes a duty to exercise reasonable care in the product’s design and manufacture so that it will be reasonably safe for its normal uses. Therefore, a plaintiff must prove the following

1. The product was defective at the time it was placed on the market by the defendant;

2. With such a defect, the product was reasonably certain to be dangerous when put to normal use; and

3. The defendant either failed to exercise reasonable care in designing or making the product or in inspecting and testing the product for defects; or exercised reasonable care in designing, making, inspecting and testing the product but learned of the defect before the product was placed on the market.⁸⁸⁸

A retailer or wholesale seller may be held liable for negligence if he or she knows or should know that the product, when put to its intended use, is likely to be dangerous if defectively made, and he or she has no reason to believe the user will discover such danger. The seller may also be liable if he or she fails to exercise reasonable care to see that the product, when delivered, is safe for its intended use ⁸⁸⁹

B. Failure to Warn

A negligent failure-to-warn case is distinguished from a strict products liability case by its focus on the reasonableness of the manufacturer’s conduct rather than on the product itself. Accordingly, in the strict liability case, the plaintiff need not prove that the defendant “knew of or should have known of the harmful character of the product without a warning.” ⁸⁹⁰ As a practical matter, negligence and strict products liability theories for failure to warn are submitted for jury consideration concurrently. The intellectual distinction between the two theories is merely an abstraction ⁸⁹¹

II. PROOF IN STRICT PRODUCTS LIABILITY ACTIONS892

A. Design Defect

To establish a prima facie design defect case, the plaintiff must prove that (1) the product was not reasonably safe for use when it left the manufacturer’s hands; (2) the defectively designed product caused the plaintiff’s injuries; and (3) the defect was the proximate cause of those injuries ⁸⁹³

As stated by New York’s highest court in Voss, the plaintiff must present evidence that (1) the product 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; and (2) the defectively designed product caused the plaintiff’s injury and the defect was a substantial factor in causing that injury. ⁸⁹⁴ The Voss opinion lists the factors the jury may consider in balancing the risks inherent in the product as designed and the utility and cost of the product as designed:

• (1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product—that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which can reasonably be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design.⁸⁹⁵

The elements of proof and the jury instructions that apply to manufacturing defects also apply to distributors and vendors. ⁸⁹⁶

B. Failure to Warn

In strict products liability, the elements of a failure-to-warn claim focus on the adequacy of the warning, not on the manufacturer’s knowledge of the dangers posed by the product. ⁸⁹⁷ A manufacturer’s duty to warn extends only to existing dangers about which it knew or should have known; the duty is not absolute. ⁸⁹⁸ The plaintiff must prove the following:

1. The defendant was the manufacturer, seller or supplier of the product that allegedly caused the plaintiff’s injury;

2. The product was defective due to the failure to warn of an inherent danger;

3. The defect existed when the product left the defendant’s control;

4. The defect rendered the product not reasonably safe; and

5. The defect was a substantial factor in bringing about the plaintiff’s injuries.

The manufacturer’s obligation under both negligence and strict products liability theories is essentially the same—to adequately warn users of the product’s inherent dangers that otherwise would not have been disclosed upon a reasonable inspection by the plaintiff. ⁸⁹⁹ The nature of the warning and the persons to whom it should be communicated are functions of a variety of factors, including the harm that may result absent the warning, the type of product involved, the knowledge and sophistication of the user and the burden in disseminating the warning. ⁹⁰⁰

If a manufacturer can demonstrate that the plaintiff failed to read the warning, proximate cause is absent. Exceptions to this rule occur when the injured plaintiff is illiterate; the warning was not sufficiently prominent; or, in a workplace context, other workers or officials may have read the warning and discussed it with the plaintiff. ⁹⁰¹

Clearly, liability may be imposed in negligence for breaching a continuing duty to warn. ⁹⁰² Whether liability may be imposed in strict products liability cases for breaching a continuing duty to warn is unclear.

A commercial lessor who introduces a defective product into the marketplace is subject to strict products liability, even in the absence of privity. ⁹⁰³ If the transaction involving the product is incidental to the primary undertaking, strict products liability does not apply. ⁹⁰⁴ However, even casual or incidental providers have a duty to warn of any known defects that are not obvious or readily discernible. ⁹⁰⁵

C. Manufacturing Defect

To prove a defect in manufacturing, a plaintiff must demonstrate that (1) the product was not made as the manufacturer intended; and (2) the defect was a substantial factor in causing the plaintiff’s injuries. ⁹⁰⁶

III. MATTERS OF PLEADING AND PROCEDURE

A. Answer Time and Particularity of Affirmative Defenses

An answer must be interposed within 20 days after service of the summons if personal service was effected on the defendant within New York State, or within 30 days after the completion of service if a method other than personal service was employed to effect service on the defendant. ⁹⁰⁷

Affirmative defenses must be set forth in the defendant’s answer with specificity as to the legal basis of the defense. The defendant need not set forth the factual circumstances underlying the defense. ⁹⁰⁸

B. Service of Process

In 1992, New York made extensive changes to the rules governing the commencement of actions and special proceedings in supreme and county courts. Before service is valid, the party commencing an action must purchase an index number and file the summons and complaint (or summons and notice) with the clerk of the county where the action will be brought ⁹⁰⁹ In 1997, New York made additional changes to rules concerning the service of summons. Proof of service is no longer required in New York; instead, the statute requires only that process be served on the defendant within 120 days after the commencement of the action or proceeding. In a case in which the statute of limitations is four months or less, process must be served within 15 days of the date of expiration of the statute of limitations. If process is not served in a timely manner within the appropriate guidelines, the defendant has the burden to move to dismiss for untimely service. In reviewing these motions, the court may use discretion in deciding whether to extend the time period for service, by reviewing whether there was “good cause shown” or whether granting an extension would be “in the interest of justice.” ⁹¹⁰

Service upon a corporation may be accomplished by personally serving an “officer, director, managing or general agent, or cashier or assistant cashier or . . . any other agent authorized by appointment or by law to receive service.” ⁹¹¹ If there is an affirmative representation that a person has authority to accept service on behalf of a corporation and there was a reasonable reliance on that representation, service on that person is valid service on the corporation. ⁹¹²

The secretary of state is an agent for receipt of process for domestic or authorized foreign corporations. ⁹¹³ Service may be made by serving the secretary of state with duplicate copies of process. ⁹¹⁴ Insurance companies may also be served through the superintendent of insurance. ⁹¹⁵ An unauthorized foreign corporation may also be served through the secretary of state. This service will be sufficient if notice of filing with the secretary of state and a copy of the process are personally served upon the foreign corporation or are sent by registered mail, return receipt requested, to the post office address on file in the jurisdiction of the entity’s incorporation. Proof of such service must be filed within 30 days of personal service, receipt of the return receipt or return of the original envelope with a notation by the postal authorities that acceptance was refused. Service of process is complete 10 days after filing proof of such service. ⁹¹⁶ While the foregoing procedure may also be used on an authorized corporation, the less stringent method of service under BCL § 306 is not valid on an unauthorized

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