CASE NOTES

Baby's Injury While Using Walker Not Caused by Defective Design

A claim of defective design was dismissed because the plaintiff failed to pass either a 'risk-utility test' or a 'consumer expectations test.' Thongchoom v. Graco Child- ren's Products, Inc., No. 21107-0-III; Was.Ct.App., May 6, 2003.

The Thongchooms' infant child suffered burns while he was in a Graco walker; the infant walked over and pulled a cord attached to a pot full of hot water that fell on and burned him. The Thongchooms filed an action against Graco, claiming that the walker was defectively designed. Graco's motion for summary judgment was granted and the Thongchooms appealed. The appellate court reviewed the summary judgment motion de novo and affirmed the decision of the court below. The walker was purchased at a garage sale without the walker's original instructions or warning information, and the plaintiff received the walker as a gift. However, there was a warning on the walker itself that the plaintiffs acknowledged reading. In affirming dismissal of the plaintiffs' claims, the appellate court considered that the plaintiffs had to pass a 'risk-utility test' and a 'consumer expectations test.' The plaintiffs failed to pass the 'risk-utility' test. They could not establish that the probability the product would cause the plaintiffs harm outweighed the manufacturer's burden to design a product that would prevent harm. In this case, the walker by nature was designed to provide mobility to a pre-walking child. Because the purpose of the walker was to make a baby mobile, there was no alternative design that would have prevented harm. Under the 'consumer expectations test,' the plaintiffs had to establish that the product was more dangerous than the ordinary consumer would expect. Here, the plaintiffs could not establish that the walker was more dangerous than the ordinary consumer would expect. The walker was designed to provide mobility, which should be an obvious potential danger. The court also noted that, although the plaintiffs claimed that the defendant failed to provide adequate warnings, there were warnings attached to the walker itself. The plaintiffs acknowledged reading the warnings, and the court concluded that the defendant had complied with its duty to warn. Finally, the appellate court noted that there was no contractual privity between the plaintiffs and the defendant because the plaintiffs received the walker as a gift.

Circumstantial Proof Permitted To Establish Cause of Fire

Circumstantial proof of causation is a recognized method of proof in product liability cases and is sufficient to defeat a motion for summary judgment. Speller v. Sears, Roebuck and Co., No. 40, N.Y. May 6, 2003.

Sarah Speller died after a fire that originated in the kitchen of her house. Her husband filed an action against Sears and Whirlpool, claiming negligence, strict product liability and breach of warranty. Discovery revealed that there were differing opinions regarding the source of the fire. The fire marshal reported that the source of the fire was grease from the stovetop; the plaintiff's experts believed the fire was caused by defective wiring in the refrigerator manufactured by Whirlpool and sold by Sears. Because of the different opinions regarding the source of the fire, the trial court denied the defendant's motion for summary judgment. On appeal, the appellate court reversed, stating that the difference in opinions shifted the burden of proof to the plaintiff to show that a defect in the refrigerator was the source of the fire. Moreover, because the reports of the plaintiff's experts were 'equivocal,' the plaintiff could not sustain its burden and the defendant was entitled to summary judgment. The plaintiff appealed to the state's highest court, which held that there was a triable issue of fact for a jury. The high court reasoned that even though the refrigerator was destroyed in the fire, the plaintiff was entitled to prove its claim circumstantially; this method has long been recognized in the state as a viable method to prove product liability. It took note that a triable issue of fact existed regarding the source of the fire, and the appellate court had erroneously found the opinion of the plaintiff's expert equivocal.

Loss of Professional Reputation, Good Will Insufficient to Establish Economic Loss

The economic loss rule prohibits recovery in an action for strict product liability and negligence where the economic loss is based on damage to professional reputation and loss of good will. Catalano v. Kulzer, Inc., 2002-05078, N.Y.App. Div., 2nd Dept., May 5, 2003.

A dentist used Artglass, a polymer-based system of dental restorations, to perform certain procedures on patients. He commenced a class action on behalf of himself and other dentists similarly situated against the U.S. distributor of Artglass, claiming that the defendant's product was defectively designed, causing the dental restorations performed by the plaintiff to fail prematurely. The plaintiff also claimed breach of express and implied warranties. The trial court denied the plaintiff's motion for class certification because the plaintiff failed to show 'common questions of law or fact' predominated. The court then granted the defendant's motion for summary judgment. The plaintiff appealed and the appellate court affirmed the lower court's ruling denying class certification and granting summary judgment to the defendant on the plaintiff's claims of strict liability and implied warranty. Based upon the economic loss rule, the plaintiff could not establish any personal injury or property damage. The plaintiff claimed he suffered from a loss of professional reputation and good will, which was not sufficient to sustain a claim for economic loss. Furthermore, there was no contractual privity between the parties to sustain a claim of implied warranty. However, because the plaintiff claimed he relied on particular literature provided by the defendant in choosing to utilize the defendant's product in his dental restorations, the appellate court held that the plaintiff had sustained a claim based upon express warranty and remanded the matter for trial on that issue.

A claim of defective design was dismissed because the plaintiff failed to pass either a 'risk-utility test' or a 'consumer expectations test.' Thongchoom v. Graco Child- ren's Products, Inc., No. 21107-0-III; Was.Ct.App., May 6, 2003.

The Thongchooms' infant child suffered burns while he was in a Graco walker; the infant walked over and pulled a cord attached to a pot full of hot water that fell on and burned him. The Thongchooms filed an action against Graco, claiming that the walker was defectively designed. Graco's motion for summary judgment was granted and the Thong- chooms appealed. The appellate court reviewed the summary judgment motion de novo and affirmed the decision of the court below. The walker was purchased at a garage sale without the walker's original instructions or warning information, and the plaintiff rec- eived the walker as a gift. However, there was a warning on the walker itself that the plaintiffs acknowledged reading. In affirming dismissal of the plaintiffs' claims, the appellate court considered that the plaintiffs had to pass a 'risk-utility test' and a 'consumer expectations test.' The plaintiffs failed to pass the 'risk-utility' test. They could not establish that the probability the product would cause the plaintiffs harm outweighed the manufacturer's burden to design a product that would prevent harm. In this case, the walker by nature was designed to provide mobility to a pre-walking child. Because the purpose of the walker was to make a baby mobile, there was no alternative design that would have prevented harm. Under the 'consumer expectations test,' the plaintiffs had to establish that the product was more dangerous than the ordinary consumer would expect. Here, the plaintiffs could not establish that the walker was more dangerous than the ordinary consumer would expect. The walker was designed to provide mobility, which should be an obvious potential danger. The court also noted that, although the plaintiffs claimed that the defendant failed to provide adequate warnings, there were warnings attached to the walker itself. The plaintiffs acknowledged reading the warnings, and the court concluded that the defendant had complied with its duty to warn. Finally, the appellate court noted that there was no contractual privity between the plaintiffs and the defendant because the plaintiffs received the walker as a gift.

Circumstantial proof of causation is a recognized method of proof in product liability cases and is sufficient to defeat a motion for summary judgment. Speller v. Sears, Roebuck and Co., No. 40, N.Y. May 6, 2003.

Sarah Speller died after a fire that originated in the kitchen of her house. Her husband filed an action against Sears and Whirlpool, claiming negligence, strict product liability and breach of warranty. Discovery revealed that there were differing opinions regarding the source of the fire. The fire marshal reported that the source of the fire was grease from the stovetop; the plaintiff's experts believed the fire was caused by defective wiring in the refrigerator manufactured by Whirlpool and sold by Sears. Because of the different opinions regarding the source of the fire, the trial court denied the defendant's motion for summary judgment. On appeal, the appellate court reversed, stating that the difference in opinions shifted the burden of proof to the plaintiff to show that a defect in the refrigerator was the source of the fire. Moreover, because the reports of the plaintiff's experts were 'equivocal,' the plaintiff could not sustain its burden and the defendant was entitled to summary judgment. The plaintiff appealed to the state's highest court, which held that there was a triable issue of fact for a jury. The high court reasoned that even though the refrigerator was destroyed in the fire, the plaintiff was entitled to prove its claim circumstantially; this method has long been recognized in the state as a viable method to prove product liability. It took note that a triable issue of fact existed regarding the source of the fire, and the appellate court had erroneously found the opinion of the plaintiff's expert equivocal.

The economic loss rule prohibits recovery in an action for strict product liability and negligence where the economic loss is based on damage to professional reputation and loss of good will. Catalano v. Kulzer, Inc., 2002-05078, N.Y.App. Div., 2nd Dept., May 5, 2003.

A dentist used Artglass, a polymer-based system of dental restorations, to perform certain procedures on patients. He commenced a class action on behalf of himself and other dentists similarly situated against the U.S. distributor of Artglass, claiming that the defendant's product was defectively designed, causing the dental restorations performed by the plaintiff to fail prematurely. The plaintiff also claimed breach of express and implied warranties. The trial court denied the plaintiff's motion for class certification because the plaintiff failed to show 'common questions of law or fact' predominated. The court then granted the defendant's motion for summary judgment. The plaintiff appealed and the appellate court affirmed the lower court's ruling denying class certification and granting summary judgment to the defendant on the plaintiff's claims of strict liability and implied warranty. Based upon the economic loss rule, the plaintiff could not establish any personal injury or property damage. The plaintiff claimed he suffered from a loss of professional reputation and good will, which was not sufficient to sustain a claim for economic loss. Furthermore, there was no contractual privity between the parties to sustain a claim of implied warranty. However, because the plaintiff claimed he relied on particular literature provided by the defendant in choosing to utilize the defendant's product in his dental restorations, the appellate court held that the plaintiff had sustained a claim based upon express warranty and remanded the matter for trial on that issue.

Manufacturer Not Liable for Air Bag's Failure to Deploy

A plaintiff's strict liability claim failed because she was unable to establish that the failure of a driver-side air bag to deploy was the proximate cause of the death of the plaintiff's decedent. Klootwyk v. DaimlerChrysler Corporation, et al., No. 01 C 6127; N.D. Ill., May 7, 2003.

Lorraine Klootwyk's husband was killed in a one-car automobile accident wherein he operated a vehicle designed and manufactured by DaimlerChrysler. She filed a two-count lawsuit against Daimler-Chrysler claiming strict product liability and negligence. Specifically, she claimed that the driver-side air bag system was defectively designed and was the cause of her husband's injury and death. Because she failed to respond to DaimlerChrysler's summary judgment motion, the court was procedurally required to admit the facts as provided in DaimlerChrysler's motion. The defendant corporation was granted summary judgment against the plaintiff. The defendant alleged that the decedent had a heart condition and that the decedent actually suffered a heart attack prior to the automobile accident. After the decedent's heart attack, the car rolled off the road. The defendant alleged that the driver-side air bag did not deploy because the speed of the car did not reach its necessary threshold. The court, in granting summary judgment, held that the plaintiff's strict liability claim did not pass its three-prong test. First, the court could not find that the failure of the driver-side air-bag to deploy was the proximate cause of the decedent's death. The plaintiff failed to present evidence that the deployment failure was the probable (not merely possible) cause of the decedent's death. Because the plaintiff provided no evidence of causation, her claim could not pass summary judgment. Second, the plaintiff failed to establish that the failure of the air bag to deploy at the speed of the decedent's automobile at the time of the accident was unreasonably dangerous; and, third, the plaintiff failed to establish that the condition existed at the time the automobile left the defendant's control. As to her negligence claim, the court found she failed to establish that the defendant owed and breached a specific duty toward the plaintiff. Moreover, to sustain a negligence claim, the plaintiff was also required to show that the driver-side air bag was dangerous when it was designed.

Baby's Injury While Using Walker Not Caused by Defective Design

A claim of defective design was dismissed because the plaintiff failed to pass either a 'risk-utility test' or a 'consumer expectations test.' Thongchoom v. Graco Child- ren's Products, Inc., No. 21107-0-III; Was.Ct.App., May 6, 2003.

The Thongchooms' infant child suffered burns while he was in a Graco walker; the infant walked over and pulled a cord attached to a pot full of hot water that fell on and burned him. The Thongchooms filed an action against Graco, claiming that the walker was defectively designed. Graco's motion for summary judgment was granted and the Thongchooms appealed. The appellate court reviewed the summary judgment motion de novo and affirmed the decision of the court below. The walker was purchased at a garage sale without the walker's original instructions or warning information, and the plaintiff received the walker as a gift. However, there was a warning on the walker itself that the plaintiffs acknowledged reading. In affirming dismissal of the plaintiffs' claims, the appellate court considered that the plaintiffs had to pass a 'risk-utility test' and a 'consumer expectations test.' The plaintiffs failed to pass the 'risk-utility' test. They could not establish that the probability the product would cause the plaintiffs harm outweighed the manufacturer's burden to design a product that would prevent harm. In this case, the walker by nature was designed to provide mobility to a pre-walking child. Because the purpose of the walker was to make a baby mobile, there was no alternative design that would have prevented harm. Under the 'consumer expectations test,' the plaintiffs had to establish that the product was more dangerous than the ordinary consumer would expect. Here, the plaintiffs could not establish that the walker was more dangerous than the ordinary consumer would expect. The walker was designed to provide mobility, which should be an obvious potential danger. The court also noted that, although the plaintiffs claimed that the defendant failed to provide adequate warnings, there were warnings attached to the walker itself. The plaintiffs acknowledged reading the warnings, and the court concluded that the defendant had complied with its duty to warn. Finally, the appellate court noted that there was no contractual privity between the plaintiffs and the defendant because the plaintiffs received the walker as a gift.

Circumstantial Proof Permitted To Establish Cause of Fire

Circumstantial proof of causation is a recognized method of proof in product liability cases and is sufficient to defeat a motion for summary judgment. Speller v. Sears, Roebuck and Co., No. 40, N.Y. May 6, 2003.

Sarah Speller died after a fire that originated in the kitchen of her house. Her husband filed an action against Sears and Whirlpool, claiming negligence, strict product liability and breach of warranty. Discovery revealed that there were differing opinions regarding the source of the fire. The fire marshal reported that the source of the fire was grease from the stovetop; the plaintiff's experts believed the fire was caused by defective wiring in the refrigerator manufactured by Whirlpool and sold by Sears. Because of the different opinions regarding the source of the fire, the trial court denied the defendant's motion for summary judgment. On appeal, the appellate court reversed, stating that the difference in opinions shifted the burden of proof to the plaintiff to show that a defect in the refrigerator was the source of the fire. Moreover, because the reports of the plaintiff's experts were 'equivocal,' the plaintiff could not sustain its burden and the defendant was entitled to summary judgment. The plaintiff appealed to the state's highest court, which held that there was a triable issue of fact for a jury. The high court reasoned that even though the refrigerator was destroyed in the fire, the plaintiff was entitled to prove its claim circumstantially; this method has long been recognized in the state as a viable method to prove product liability. It took note that a triable issue of fact existed regarding the source of the fire, and the appellate court had erroneously found the opinion of the plaintiff's expert equivocal.

Loss of Professional Reputation, Good Will Insufficient to Establish Economic Loss

The economic loss rule prohibits recovery in an action for strict product liability and negligence where the economic loss is based on damage to professional reputation and loss of good will. Catalano v. Kulzer, Inc., 2002-05078, N.Y.App. Div., 2nd Dept., May 5, 2003.

A dentist used Artglass, a polymer-based system of dental restorations, to perform certain procedures on patients. He commenced a class action on behalf of himself and other dentists similarly situated against the U.S. distributor of Artglass, claiming that the defendant's product was defectively designed, causing the dental restorations performed by the plaintiff to fail prematurely. The plaintiff also claimed breach of express and implied warranties. The trial court denied the plaintiff's motion for class certification because the plaintiff failed to show 'common questions of law or fact' predominated. The court then granted the defendant's motion for summary judgment. The plaintiff appealed and the appellate court affirmed the lower court's ruling denying class certification and granting summary judgment to the defendant on the plaintiff's claims of strict liability and implied warranty. Based upon the economic loss rule, the plaintiff could not establish any personal injury or property damage. The plaintiff claimed he suffered from a loss of professional reputation and good will, which was not sufficient to sustain a claim for economic loss. Furthermore, there was no contractual privity between the parties to sustain a claim of implied warranty. However, because the plaintiff claimed he relied on particular literature provided by the defendant in choosing to utilize the defendant's product in his dental restorations, the appellate court held that the plaintiff had sustained a claim based upon express warranty and remanded the matter for trial on that issue.

A claim of defective design was dismissed because the plaintiff failed to pass either a 'risk-utility test' or a 'consumer expectations test.' Thongchoom v. Graco Child- ren's Products, Inc., No. 21107-0-III; Was.Ct.App., May 6, 2003.

The Thongchooms' infant child suffered burns while he was in a Graco walker; the infant walked over and pulled a cord attached to a pot full of hot water that fell on and burned him. The Thongchooms filed an action against Graco, claiming that the walker was defectively designed. Graco's motion for summary judgment was granted and the Thong- chooms appealed. The appellate court reviewed the summary judgment motion de novo and affirmed the decision of the court below. The walker was purchased at a garage sale without the walker's original instructions or warning information, and the plaintiff rec- eived the walker as a gift. However, there was a warning on the walker itself that the plaintiffs acknowledged reading. In affirming dismissal of the plaintiffs' claims, the appellate court considered that the plaintiffs had to pass a 'risk-utility test' and a 'consumer expectations test.' The plaintiffs failed to pass the 'risk-utility' test. They could not establish that the probability the product would cause the plaintiffs harm outweighed the manufacturer's burden to design a product that would prevent harm. In this case, the walker by nature was designed to provide mobility to a pre-walking child. Because the purpose of the walker was to make a baby mobile, there was no alternative design that would have prevented harm. Under the 'consumer expectations test,' the plaintiffs had to establish that the product was more dangerous than the ordinary consumer would expect. Here, the plaintiffs could not establish that the walker was more dangerous than the ordinary consumer would expect. The walker was designed to provide mobility, which should be an obvious potential danger. The court also noted that, although the plaintiffs claimed that the defendant failed to provide adequate warnings, there were warnings attached to the walker itself. The plaintiffs acknowledged reading the warnings, and the court concluded that the defendant had complied with its duty to warn. Finally, the appellate court noted that there was no contractual privity between the plaintiffs and the defendant because the plaintiffs received the walker as a gift.

Circumstantial proof of causation is a recognized method of proof in product liability cases and is sufficient to defeat a motion for summary judgment. Speller v. Sears, Roebuck and Co., No. 40, N.Y. May 6, 2003.

Sarah Speller died after a fire that originated in the kitchen of her house. Her husband filed an action against Sears and Whirlpool, claiming negligence, strict product liability and breach of warranty. Discovery revealed that there were differing opinions regarding the source of the fire. The fire marshal reported that the source of the fire was grease from the stovetop; the plaintiff's experts believed the fire was caused by defective wiring in the refrigerator manufactured by Whirlpool and sold by Sears. Because of the different opinions regarding the source of the fire, the trial court denied the defendant's motion for summary judgment. On appeal, the appellate court reversed, stating that the difference in opinions shifted the burden of proof to the plaintiff to show that a defect in the refrigerator was the source of the fire. Moreover, because the reports of the plaintiff's experts were 'equivocal,' the plaintiff could not sustain its burden and the defendant was entitled to summary judgment. The plaintiff appealed to the state's highest court, which held that there was a triable issue of fact for a jury. The high court reasoned that even though the refrigerator was destroyed in the fire, the plaintiff was entitled to prove its claim circumstantially; this method has long been recognized in the state as a viable method to prove product liability. It took note that a triable issue of fact existed regarding the source of the fire, and the appellate court had erroneously found the opinion of the plaintiff's expert equivocal.

The economic loss rule prohibits recovery in an action for strict product liability and negligence where the economic loss is based on damage to professional reputation and loss of good will. Catalano v. Kulzer, Inc., 2002-05078, N.Y.App. Div., 2nd Dept., May 5, 2003.

A dentist used Artglass, a polymer-based system of dental restorations, to perform certain procedures on patients. He commenced a class action on behalf of himself and other dentists similarly situated against the U.S. distributor of Artglass, claiming that the defendant's product was defectively designed, causing the dental restorations performed by the plaintiff to fail prematurely. The plaintiff also claimed breach of express and implied warranties. The trial court denied the plaintiff's motion for class certification because the plaintiff failed to show 'common questions of law or fact' predominated. The court then granted the defendant's motion for summary judgment. The plaintiff appealed and the appellate court affirmed the lower court's ruling denying class certification and granting summary judgment to the defendant on the plaintiff's claims of strict liability and implied warranty. Based upon the economic loss rule, the plaintiff could not establish any personal injury or property damage. The plaintiff claimed he suffered from a loss of professional reputation and good will, which was not sufficient to sustain a claim for economic loss. Furthermore, there was no contractual privity between the parties to sustain a claim of implied warranty. However, because the plaintiff claimed he relied on particular literature provided by the defendant in choosing to utilize the defendant's product in his dental restorations, the appellate court held that the plaintiff had sustained a claim based upon express warranty and remanded the matter for trial on that issue.