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Editor's Note: In last month's newsletter, the author began a discussion of the manufacturer practice of making increased safety features available to purchasers — but only for a price. Those who buy the base model forgo the enhanced safety equipment. This marketing model has been used extensively in many areas, the most familiar probably being the the sale of cars, which might come with anti-lock brakes or rear-view cameras only if the purchaser hands over several thousand dollars above the car's base price. Now, courts are increasingly being asked to determine whether consumers injured by a product that does not have enhanced safety features — because they were not purchased — can hold the manufacturer or others liable for an injury that could have been avoided had those safety features been there. The discussion concludes herein.
New York Law
Let's look at New York law, which is somewhat confusing. In Scarangella v. Thomas Built Buses, 717 N. E. 2d 679 (1999), the court ruled that a manufacturer is excused from liability when the product is sold without optional safety equipment to a sophisticated buyer. (Of course this defense would not be available when the product is sold to an ordinary consumer.)
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