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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
its utility and cost (cite omitted). As relevant here, these include the likelihood that the product will cause injury, the ability of the plaintiff to have avoided injury, the degree of awareness of the product's dangers which can be attributed to the plaintiff, the usefulness of the product to the consumer as designed as compared to a safer design and the functional and monetary cost of using the alternative design (cite omitted). An additional factor that may be taken into account is "the likely effects of [liability for a failure to adopt] the alternative design on . . . the range of consumer choice among products"
(quoting Restatement [Third] of Products Liability ยง 2, comment f; emphasis added).
Fallon and Scarangella made it clear that the Voss/Denny risk/utility factors merely established a flexible set of guidelines for consideration depending upon the circumstances of each individual case. Furthermore, by considering the factors in the context of their relevance to a particular case, the Court made it clear that the judge, rather than the jury, is the first arbiter of whether or not a given factor is applicable to a case presented to the court (since "relevance" is a determination to be made by the judge). Therefore, contrary to defendants' assertions in the instant matter, there is no requirement that all seven of risk/utility factors be presented for consideration by the jury in all products liability cases.
While public awareness of the dangers of cigarette smoking is relevant in a case premised on strict product liability, it has no relevance in a case premised on negligent design. This distinction was succinctly set forth in Gonzalez v Morflo Industries, Inc., et. al. (931 F. Supp 159, 165 [EDNY 1996]) wherein the court stated: "When a plaintiff asserts a design defect claim on a theory of negligence, the only difference in the inquiry is that in the negligence action, the jury must ask whether the manufacturer acted unreasonably in designing the product. That is, the focus shifts from whether the product, as designed was not reasonably safe to whether the manufacturer was aware of that condition and chose to market the product anyway." (Citing Voss, 59 NY2d at 107.) (Emphasis added.)
In the strict products liability action, the condition of the product itself, as it is offered in the marketplace, is the central issue. Thus, information generally known to the public concerning the condition of the product as it is offered in the marketplace has relevance. In the negligent product design action, the manufacturer's knowledge of the condition of the product as designed and the manufacturer's conduct in light of that knowledge are the central issues for consideration. Thus, public awareness of the dangers of a product would only be relevant and admissible in a negligent product design case when evidence exists that the manufacturers of the product reasonably relied upon the public's awareness when making design decisions concerning the product.
Accordingly, plaintiffs' motion to preclude defendants from introducing evidence of the general public's awareness of the dangers of cigarette smoking was granted to the extent that defendants were precluded from introducing such evidence unless they first offered evidence to show that they made product design decisions in reasonable reliance upon the information available to the public.
Plaintiffs' Motion to Dismiss the Affirmative Defenses of Primary and Express Assumption of the Risk
Defendants' answers included the affirmative defenses of "primary assumption of the risk" and "express assumption of the risk." Plaintiffs moved to dismiss these affirmative defenses. Plaintiff
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