Statute of Limitations (NEW YORK)
Personal Injury - 3 yrs. [CPLR § 214]
Property Damage - 3 yrs. [CPLR § 214]
Wrongful Death - 2 yrs. (after death) [EPTL § 5-4.1]
Contract of Sale and Breach of Warranty - 4 yrs. (from tender of delivery) [McKinney's U.C.C. § 2-725]
Contracts (Written and Oral) - 6 yrs. [CPLR § 213]
Usually no “discovery rule,” depends on type of action.
Statute of Repose (Products) (NEW YORK)
Admissibility of Expert Testimony (NEW YORK)
Frye test. Frye test asks whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. Frye holds that while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. It emphasizes counting scientists votes, rather than on verifying the soundness of a scientific conclusion [Parker v. Mobil Oil Corp., 857 N.E.2d 1114 (N.Y. 2006)].
Causes of Action (NEW YORK)
Strict Liability – The manufacturer of a defective product is liable if the defect was a substantial factor in bringing about his injury or damages; provided that: (1) at the time of the occurrence the product is being used for the purpose and in the manner normally intended; (2) if the person injured or damaged is himself the user of the product, he would not by the exercise of reasonable care have both discovered the defect and perceived its danger; and (3) by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages [Codling v. Paglia, 298 N.E.2d 622 (N.Y. 1973)].
Negligence – When a plaintiff asserts a design defect claim on a theory of negligence, the only difference in the inquiry is that in the negligence action, the jury must ask whether the manufacturer acted unreasonably in designing the product. That is, the focus shifts from whether the product, as designed, was not reasonably safe to whether the manufacturer was aware of that condition and chose to market the product anyway [Momen v. United States, 946 F. Supp. 196 (N.D.N.Y. 1996)].
Breach of Warranty – New York has adopted the standard UCC express warranty [NY UCC § 2-313]; implied warranty of merchantability [NY UCC § 2-314]; implied warranty of fitness for particular purpose [NY UCC § 2-315]. A seller’s warranty (express or implied) extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [NY UCC § 2-318]. The causes of action for strict products liability and breach of implied warranty of merchantability are not identical in New York and the latter is not necessarily subsumed by the former [Denny v. Ford Motor Co., 662 N.E.2d 730 (N.Y. 1995)].
Definition of “Defect” (NEW YORK)
A plaintiff may assert that the product is defective due to a mistake in manufacturing; due to an improper design; or because of the manufacturer’s failure to provide adequate warnings [Momen v. United States, 946 F. Supp. 196 (N.D.N.Y. 1996)].
A manufacturing defect results when a mistake in manufacturing renders an ordinarily safe product dangerous so that it causes harm. A defectively designed product is one which, at the time it leaves the manufacturer’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use (that is, one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce) [Momen v. United States, 946 F. Supp. 196 (N.D.N.Y. 1996)].
Also, see discussion below re: design defects.
Liability of Sellers (NEW YORK)
Sellers are strictly liable [Sukljian v. Charles Ross & Son Co., 503 N.E.2d 1358 (N.Y. 1986)]. For liability to apply, the seller must be engaged in the business of selling such products.
Defenses (NEW YORK)
Comparative Negligence – New York follows pure comparative negligence (Plaintiff can recover even if 99% at fault) [CPLR § 1411].
Assumption of Risk – Not a separate defense, included in the comparative negligence analysis/definition [CPLR § 1411].
Product Alteration/Modification – Complete defense if “substantial alterations or modification” [Amatulli v. Delhi Constr. Corp., 571 N.E.2d 645 (N.Y. 1991)].
Product Misuse – Manufacturer is liable if misuse was unintended but reasonably foreseeable [Lugo v. LJN Toys, Ltd., 552 N.E.2d 162 (N.Y. 1990)].
Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NEW YORK)
ELD is recognized/applied. Purchaser of a used helicopter could not recover in tort against manufacturer of helicopter which malfunctioned but which only caused injury to the helicopter itself; although purchaser had no contractual remedies against the manufacturer, purchaser could have bargained for warranties from the seller rather than buying the helicopter “as is” [Bocre Leasing Corp. v. General Motors Corp., 840 F.Supp. 231 (E.D. N.Y. 1994)]. Where a product fails to perform as promised due to negligence in either the manufacturing or installation process, Plaintiff is precluded from recovering tort damages for its economic loss [Suffolk Laundry Servs. v Redux Corp., 238 A.D.2d 577 (N.Y. App. 1997)]. Negligence action seeking recovery for economic loss will not lie [MCI Telecommunications Corp. v. John Mezzalingua Associates, Inc., 921 F.Supp. 936 (N.D. N.Y. 1996)].
Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NEW YORK)
A products liability cause of action may be proven by circumstantial evidence (a plaintiff need not identify a specific product defect). In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product's failure that are not attributable to defendants [Ramos v. Howard Indus., Inc., 885 N.E.2d 176 (N.Y. 2008)].
Design Defects (NEW YORK)
A defect in a product may consist of an improper design [Amatulli v. Delhi Constr. Corp., 571 N.E.2d 645 (N.Y. 1991)].
In order to establish a prima facie case in strict products liability for a design defect, a plaintiff must show that the manufacturer marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury. When a plaintiff asserts a design defect claim on a theory of negligence, the only difference in the inquiry is that in the negligence action, the jury must ask whether the manufacturer acted unreasonably in designing the product. That is, the focus shifts from whether the product, as designed, was not reasonably safe to whether the manufacturer was aware of that condition and chose to market the product anyway [Momen v. United States, 946 F. Supp. 196 (N.D.N.Y. 1996)].
In balancing the risks inherent in the product, as designed, against its utility and cost, the jury may consider several factors. Those factors may include the following: (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 reasonably can be attributed to the plaintiff; and (7) the manufacturer's ability to spread any cost related to improving the safety of the design [Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204 (N.Y. 1983)].
A manufacturer is held to the knowledge of an expert in its field, and therefore has a duty to keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby. In addition, a manufacturer has a duty to test fully and inspect its products to uncover all dangers that are scientifically discoverable. In fulfilling its duty, a manufacturer may not rest content with industry practice, for the industry may be lagging behind in its knowledge about a product [George v. Celotex Corp., 914 F.2d 26 (2d Cir. N.Y. 1990)].
Failure to Warn (NEW YORK)
A defect in a product may consist of the inadequacy or absence of warnings for the use of the product [Amatulli v. Delhi Constr. Corp., 571 N.E.2d 645 (N.Y. 1991)
A plaintiff may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product, or when a manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its products of which he knew or should have known [Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992)].
Under a failure to warn theory, a manufacturer is subject to liability where he has: (1) reason to know that the product it markets is likely to be dangerous for the use for which it is supplied; (2) no reason to believe the user will realize its dangerous condition; and (3) fails to exercise reasonable care to inform the user of the facts which make the product dangerous. It must also be established that the failure to warn is the proximate cause of plaintiff’s injury [Momen v. United States, 946 F. Supp. 196 (N.D.N.Y. 1996)].
The nature of a necessitated warning and to whom it should be given depend upon a number of factors including the harm that may result from use of the product without the warning, the reliability and adverse interest of the person to whom notice is given, the kind of product involved, and the burden of disseminating the warning [Repka v. Arctic Cat, Inc., 20 A.D.3d 916 (N.Y. App. 2005)].
Warnings must clearly alert the user to avoid certain unsafe uses of the product, which would appear to be normal and reasonable. The degree of danger is a crucial factor in determining the specificity required in a warning. To be adequate, the warnings must be commensurate with the risk involved in the ordinary use of the product [Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642 (N.Y. App. 1984)].
It is Plaintiff’s burden to prove that the user of a product would have read and heeded a warning had one been given [Sosna v. Am. Home Prods., 748 N.Y.S.2d 548 (N.Y. App. 2002)].
Independent Cause of Action for Evidence Spoliation (NEW YORK)
No tort for negligent spoliation by a third party [MetLife Auto & Home v. Joe Basil Chevrolet, Inc., 807 N.E.2d 865 (N.Y. 2004)].