Defending an “Inherently Dangerous Product” Has Become More Difficult in New York

August 2011
In the May 2011 decision issued in Chow v. Reckitt & Colman, Inc., 17 N.Y. 3d 29, 2011 NY Slip Op 3888, New York’s Court of Appeals, the state’s highest court, reversed the defendant’s successful summary judgment motion, holding that the defendant’s attorney’s affirmation had failed to show that the defendant’s drain cleaner product could not be designed in a safer, yet similarly effective and reasonably priced manner. Using language that calls for careful analysis among products liability defense practitioners across the state, the Court held that an attorney’s affirmation – standing alone – could no longer exonerate the manufacturer of an inherently dangerous product.

The underlying facts of the Chow case are simple and straightforward. The plaintiff used the defendant’s drain cleaner product to open the floor drain located in the kitchen of his employer‘s restaurant. Plaintiff suffered severe burns to his face and ultimately lost sight in one eye when the solution splashed back. There was ample evidence and little question in the record that the plaintiff had not followed the printed instructions on the product. Thus, Chow presented a “typical” drain cleaner case, and on these facts the defendant/manufacturer moved for summary judgment.

The manufacturer’s counsel submitted an affirmation that pointed out that the drain cleaner product was 100 percent sodium hydroxide – commonly known as “lye” – marketed in the form of dry crystals. The affirmation took the position that lye is “inherently dangerous” and that any variation in the drain cleaner’s composition would result in a different product because it would no longer be “pure” sodium hydroxide.

Historically, “the product is what it is” defense has typically been more than enough in New York practice to successfully defend manufacturers of “inherently dangerous products” such as firearms, knives and cutting implements, as well as any other product known to be inherently hazardous and virtually sure to cause injury except where used in strict conformity with the manufacturer’s instructions. After all, knives are supposed to cut, explosives are supposed to blow up and guns are supposed to fire. In this way, the defendant’s counsel in Chow was simply submitting the kind of proof that for decades was sufficient under long-standing New York jurisprudence to extricate the manufacturer from the “inherently dangerous” products liability lawsuit. However, using language that could forever change the landscape in the defense of these kinds of products, the Chow court announced a new extra burden that must be addressed by defendants when seeking summary judgment in the “inherently dangerous product” case:

“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… knowing how dangerous lye is, was it reasonable for defendants to place [the lye] into the stream of commerce as a drain cleaning product for use by a lay person? Defendants offered no answer to this question, and thus, did not demonstrate their entitlement to judgment as a matter of law.” (Emphasis added.)

The italicized language above from the Chow decision is potentially far-reaching. But for the fact that the Chow facts involved drain cleaner instead of some other “inherently dangerous” product, the language could just as easily read “whether the TNT in question should have been marketed as an explosive” or “whether the sharp edge on the piece of metal in question should have been marketed as a knife and cutting implement,” given the inherently dangerous qualities of these products.

Some readers of the Chow decision are likely to argue that the Court’s ruling simply makes summary judgment more difficult in “inherently dangerous” products cases and that counsel can effectively do an end run around its holding by additionally submitting an affidavit from an expert about how, for example, “anything less than 100 percent sodium hydroxide is no longer lye and would no longer be an effective drain opener,” or something to that effect. Practitioners should be forewarned, however, because the Court also noted that the defendant/manufacturer had failed to show that the plaintiff’s handling of the drain cleaner was the sole proximate cause of his injuries and that, under these facts, the fact finder could conceivably conclude that the 100 percent lye solution “was so inherently dangerous that it should never have found its way into the stream of commerce as packaged and marketed.” Plaintiff’s attorneys are sure to cite this language from the Chow decision to urge trial courts to deny summary judgment so that a “fact finder” – i.e., a jury – could take a crack at that question.

The Chow decision makes for interesting reading and its future impact remains to be seen. One thing is certain, however, the defense of products liability cases in New York did not get any easier because of it.

For more information, please contact:

Russ Vignali
Partner-White Plains

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