Lest any of you think that who bears the burden of proof doesn't really matter, take heed of the recent decision in Chow v. Reckitt & Colman, Inc., No. 81 (N.Y. May 10, 2011) by New York's highest court, the Court of Appeals.
In Chow, a restaurant employee who did not speak English sued a manufacturer whose product was marketed and used to unclog drains. The product correctly warned that the use of lye (sodium hydroxide) presented risks of burns, and instructed users to use rubber gloves and protective eyewear when using the product. It also cautioned against letting the lye come in contact with aluminum utensils.
But the plaintiff never read the warnings and instructions. Instead, he used the product on a clogged floor drain after having watched others use the product in the past. Plaintiff poured roughly three teaspoons into an aluminum container, and then poured three cups of cold water into that container. The mixture of aluminum, lye and water created an acid that gave off hydrogen. When plaintiff -- who was not wearing any safety gear -- poured the solution down the drain, it splashed back onto plaintiff's face, causing serious burns and blindness in one eye.
There is no question that plaintiff failed to heed warnings and follow instructions that would have prevented his injuries. Indeed, the trial court granted summary judgment on the failure to warn cause of action, and that was not challenged on appeal.
But the trial court and the Appellate Division also had ruled that the defendant was entitled to summary judgment on plaintiff's strict liability design defect claim. The defendant had submitted an attorney affidavit indicating that the product is 100% lye, that lye is commonly known to be dangerous, and that any "alternative design" of the product that changed the chemical composition of the product would not have been the same product: lye.
The Court of Appeals, however, held that this was not enough to warrant summary judgment because under New York law, a product with adequate warnings still "may be so dangerous, and its misuse may be so foreseeable, that a factfinder employing the required risk-utility analysis our case law has established could reasonably conclude that 'the utility of the product did not outweigh the risk inherent in marketing' it." Slip op. at 6 (citation omitted). It was the defendant's burden, the court held, establish in the first instance that "it was not feasible to design a safer, similarly effective and reasonably priced alternative product." Id. at 7. What the court wanted from the defendant in the first instance was proof that its product was reasonably safe for its intended use.
This sounds odd to most federal court practitioners, who are used to moving for summary judgment based on the plaintiff's inability to proffer evidence on an element of a cause of action upon which he or she bears the ultimate burden of proof at trial. Judge Robert Smith filed a concurrence that explained the difference between the summary judgment rule in New York state courts as compared with the rule that applies in federal (and most other states') courts. Under Celotex Corp. v. Catrett, 477 U.S. 317 (1986), federal litigants can merely point to the opposing party's lack of evidence to prove an element that he or she must prove at trial. But in New York, the initial burden of making an evidentiary showing rests on the moving party, and thus the manufacturer was required to provide evidence establishing that the design was reasonably safe for its intended use, regardless of the plaintiff's lack of proof that the design was defective. Judge Smith explained that the plaintiff's expert, in an affidavit responding to the defendant's summary judgment motion:
proposed several products that he called "safer" alternatives to lye, but he did not show that any alternative capable of preventing plaintiff's accident would perform as well as lye at a reasonable cost. Describing his principal proposal -- a 3% to 5% solution of lye -- the expert admitted that it would take "somewhat longer to do the job" of unclogging drains, and did not say how much longer.
If a record identical to the present one were developed at trial, plaintiff would fail to meet his burden of proof and the court would be required to direct a verdict for defendants. One might think, therefore, that the record would entitle defendants to summary judgment. But one who thought that would be wrong under New York law, because the initial burden to make an evidentiary showing on summary judgment rests on the moving party. . . .
. . . The [defendant's] burden of making the necessary evidentiary showing might not have been hard to meet: an affidavit from someone knowledgeable in the industry -- either a retained expert or an employee of one of the defendants -- could have done it. But the burden was not met. . . .
. . . If we were writing on a clean slate, I might prefer the Celotex rule to ours, but we are not, and I am not urging a change in our law. I am urging, however, that parties moving for summary judgment in the future be alert to the burden that New York law places on a moving party.
Concurrence at 2-4 (citations omitted).