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Tomasino v. American Tobacco Co.11/21/2005
tions may not serve as an independent basis for allowing recovery under [the design defect theory], neither may conformance with consumer expectations serve as an independent basis for denying recovery. Such expectations may be relevant in both contexts, but in neither are they controlling' (Restatement [Third] of Torts, Products Liability § 2, Comment g)" (Miele v American Tobacco Co., supra at 804).
While the manufacturer appellants suggest that New York applies a consumer expectations test to design defect causes of action, the Court of Appeals made clear in Denny v Ford Motor Co. (87 NY2d 248) that the determination of whether a design defect is actionable requires a balancing of the risks and utilities of the product, with the consumer's degree of awareness of the product's potential danger being but one factor to consider in that analysis (see Scarangella v Thomas Built Buses, 93 NY2d 655; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 387; Miele v American Tobacco Co., supra at 804). The plaintiff's design defect causes of action as against the manufacturer appellants, therefore, were not, as they suggest, "subject to dismissal based solely on the conclusion that, as a matter of law, after 1969 when warnings were required to be included on cigarettes, cigarettes were in the condition contemplated by consumers at the time of purchase."
The evidence submitted by the plaintiff in opposition to the manufacturer appellants' respective motions for summary judgment, particularly the affidavit of William A. Farone, a scientist formerly employed by the appellant Philip Morris Incorporated, in which he stated that the manufacturer appellants opted not to develop, pursue, or exploit available technologies to reduce the toxins in cigarettes which cause disease, sufficed to raise an issue of fact as to whether the foreseeable risk of harm posed by cigarettes could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer appellants (see Miele v American Tobacco Co., supra at 804-805). "It is ineluctable that, based upon the evidence presented by the plaintiff, a jury may determine that the tobacco companies' objective was to entrap the cigarette smoker to preserve and enhance their economic objectives" (Miele v American Tobacco Co., supra at 805). Therefore, the Supreme Court properly denied those branches of the manufacturing appellants' respective motions which were for summary judgment dismissing the design defect causes of action insofar as asserted against them.
The appellants' remaining contentions are without merit.
COZIER, J.P., RITTER, RIVERA and LUNN, JJ., concur.
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