The Controversial Contradiction between Traditional Precedent and Recent Failure to Warn Jurisprudence in New York

By Kern, Dwight A.; Kostus, David S. | Albany Law Review, Winter 2011 | Go to article overview

The Controversial Contradiction between Traditional Precedent and Recent Failure to Warn Jurisprudence in New York


Kern, Dwight A., Kostus, David S., Albany Law Review


I. 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)

II. 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. …

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