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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
determine whether a product is not reasonably safe, it must be determined if the inherent risks in a product, as designed, outweigh its utility. (Voss v. Black & Decker Manufacturing Company, 59 NY2d 102, 109 .) To make that determination, the Court of Appeals in Voss considered the following risk/utility factors:
(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer's ability to spread any cost related to improving the safety of the design. (Internal citations omitted.)
While Voss was a strict liability case, defendants argued, nevertheless, that: " egligent design and strict products liability claims are treated as 'functionally equivalent' by New York courts, and the risk-utility analysis applies to both claims." (Defendant's Brief Regarding the Admissibility of Awareness Evidence on Plaintiff's Negligent Design Claim, p.1.) Defendants argued that in the instant case the court is required to charge the jury with all seven factors and allow the jury to determine the relevance and weight of each factor in its deliberations. However, defendants' argument ignored the precatory language in Voss in which the Court of Appeals stated: "In balancing the risks inherent in the product, as designed, against its utility and cost, the jury may consider several factors. Those factors may include the following ..." (Id. at 109 [internal citations omitted] [emphasis added].) More importantly the Court stated: "Pertinent factors in the individual case, when evaluated as to whether or not they are applicable, should form the basis for charging the jury as to how it should evaluate the evidence in order to decide whether a product is not reasonably safe." (Id. [emphasis added].) In Denny v Ford Motor Co. (87 NY2d 248, 257 ), the Court reiterated its position that such factors are discretionary and tailored to the facts of each case when it stated: "This standard demands inquiry into such factors as ..."
Although courts have routinely cited Voss and Denny in connection with the risk/utility factors when considering products liability claims, there has been no indication from any court that each factor was intended to be assigned equal weight or that it is mandatory that all seven factors be considered in each and every case. While some cases simply list the seven factors with virtually no discussion or evaluation of the applicability of any given factor to the circumstances of the case (see e.g. Rainbow v Albert Elia Building Co., Inc., 79 AD2d 287, 291 [4th Dept 1981] and Jackson v Bomag GmbH, 225 AD2d 878, 881 [3rd Dept 1996]), others recognize that there must be consideration of which factors are relevant to the particular case. In Fallon v Hannay & Son, Inc., (153 AD2d 95, 99 [3rd Dept 1989]), the court made no reference to the seventh factor listed in Voss (the manufacturer's ability to spread the cost of any safety-related design changes) and specifically indicated that it was considering the factors that were "relevant here". In Scarangella v. Thomas Built Buses, Inc. (93 NY2d 655, 659 ), the Court of Appeals addressed the factors as follows:
In Voss we identified seven nonexclusive factors to be considered in balancing the risks created by the product's design against
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