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June 10, 2019

NY Court of Appeals Expands Optional Safety Equipment Defense for Design Defect Claims

New York has long recognized an exception to the general rule of strict liability for design defects where a manufacturer offers a product with an optional safety device, and the purchaser chooses not to use it. See generally Scarangella v. Thomas Built Buses, 93 N.Y.2d 655 (1999). Recently, the NY Court of Appeals examined whether the exception is unavailable when the allegedly defective product came into the injured user’s hands through the rental market rather than by a purchase transaction. See Fasolas v. Bobcat of NY, Inc., ___N.Y.3d___, 2019 N.Y. Slip. Op. 03657 (May 9, 2019).

Elias Fasolas was killed while operating a Bobcat skid-steer loader when a small tree entered the cab and crushed him. Fasolas rented the loader from a rental company, which had purchased the loader from the manufacturer, Bobcat, through its distributor. Fasolas’s estate sued Bobcat and the rental company based on, among other things, defective design. The loader was a ride-on machine that can accommodate numerous attachments, including a top, rear windows, and front door as standard features due to the potential for flying debris to enter the cab.

Bobcat, however, did not recommend the door kit for use with a bucket attachment like the one rented to Fasolas, because debris should not enter the cab if the bucket is used as intended: to dig or move soil and other loose material. At trial, the estate’s expert testified that the failure to include the door kit as a standard feature for any loader with a bucket attachment destined for the rental market was a design defect and that the door kit could have saved Fasolas’s life.

Bobcat argued the loader was not defective without the door kit when used for its intended purpose and that Fasolas misused the product by attempting to plow over or dig up trees. As such, Bobcat contended it should have been relieved from strict liability under Scarangella. The trial court denied Bobcat’s request and advised the jury that it could find the loader was “defective if it’s not reasonably safe . . . to be put in the rental market.” The jury also was instructed to consider whether the loader was defective because it did not “include a protective front door . . . for the purposes of being rented.”

The jury rendered a verdict in favor of the estate, awarding $1 million in damages and finding Bobcat and the rental company liable on the defective design theory. The Appellate Division, Second Department, affirmed. The Court of Appeals granted Bobcat leave to appeal and, in a 6-1 decision, rejected the rental market distinction as a limitation to the holding in Scarangella, concluding that the plaintiff’s expert’s theory was improperly incorporated into the strict products liability instruction charged to the jury.

The court held that the lower courts misinterpreted Scarangella, which requires consideration of the purchaser’s ability, in light of the possible uses of the product, to assess the risks and benefits of purchasing the safety device given the circumstances and the contemplated uses of the product at the time of acquisition. The court explained that placement in the rental market was not the contemplated use; it was merely the process utilized to deliver the product to the end user. As a result, the purchaser’s knowledge of the product and ability to make a reasoned judgment concerning the utility of the safety feature remained a critical factor for jury consideration. The court thus reversed and remitted the case for a new trial against Bobcat on the design defect claim.

The Fasolas decision is significant because many products liability lawsuits involve products that were rented before being obtained by the injured user. All parties involved in the stream of commerce of products with a potential for causing injury should be aware of the impact of the decision on design defect claims. The court made clear that a party does not lose the benefit of the Scarangella exception merely because it places a product in the rental market.

If you have any questions regarding the content of this alert, please contact Sanjeev Devabhakthuni, associate, at SDevabhakthuni@barclaydamon.com, or another member of the firm’s Torts & Products Liability Defense Practice Area.

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