lawcritic

I have posted Sub Silentio: The Rise and (Quiet) Fall of a Strict Products Liability Cause of Action for Design Defect in New York here.

Here’s the abstract:

The two causes of action for defectively designed products in New York, one for negligence and one for strict liability, have finally entirely merged—at least in the sense that their elements are now identical. In the twelve years since the Court of Appeals first hinted that the two causes of action may be “functionally synonymous,” the doctrine as articulated by the courts has been a morass of confusing and inconsistent statements. Now, in a recent Court of Appeals decision, as well as in the 2008 Pattern Jury Instructions, there appear tolerably clear statements to the effect that, no matter what the nominal cause of action, product designs will be evaluated under a risk-utility analysis and, moreover, a plaintiff’s prima facie case requires showing the feasibility of a safer alternative design. But the handling of this doctrinal shift has been neither clean nor elegant. Rather than simply adopt the position of the Restatement (Third) of Torts, the Court of Appeals has technically left in place the nominal distinction between the two causes of action, even while rendering that distinction useless. The Pattern Jury Instructions are even worse; in blending the causes of action, the Instructions knowingly adopt negligence principles but retain the name of “strict liability.” This article reviews the confused history of the evolution of these doctrines in New York, and critiques the Court’s latest contribution to the confusion.