Defective Product Design Cases, Excluding Other Causes and Feasible Design Alternatives

by John C Cherundolo on Apr. 15, 2014

Accident & Injury Products Liability Accident & Injury  Personal Injury 

Summary: A look at the requirement of Feasible Design Alternative, and the need to show that a product is unreasonably dangerous in order to recover in a Strict liability Case.


        Law of the Case That Jury Could Conclude Motor Vehicle Accident Occurred as a Result of Defendant’s Strict Product Liability  Did Not Preclude Directed Verdict in Case Against Defendant, Ford Motor Company, Where Plaintiff Failed to Exclude all Other Causes not Attributable to Ford, Including Evidence That Defendant may Have Been Intoxicated at Time of the Accident.


Plaintiff sued the operator of a motor vehicle and Ford Motor Company when she was hit by a Ford vehicle that suddenly backed up, striking the plaintiff. The Appellate Division, First Department, had previously reversed a lower court’s grant of summary judgment to Ford Motor Company based on circumstantial evidence that the defendant driver was neither intoxicated nor negligent at the time that the vehicle supposedly lurched backward at a high rate of speed and would not brake. The court held that the defendant’s deposition testimony could lead a jury to conclude that the vehicle did not work as intended and exclude all other causes. At trial, the plaintiff presented additional evidence to the effect that the defendant driver was impaired and that his claim of having only one glass of wine would not account for a BAC of .08. On appeal, the Appellate Division found that “the law of the case” does not preclude a directed verdict in Ford’s case. Plaintiff failed to exclude all other causes not attributable to Ford, and that alone compels the dismissal of the plaintiff’s case against Ford. The plaintiff simply failed to exclude all other causes by their own expert toxicologist who proved, in pertinent part, that the defendant driver had consumed more than one glass of wine and fit the legal definition of “impaired.”



        Without a Showing That the Product in Question was Unreasonably Dangerous as Designed, Plaintiff’s Showing That There Were Economically Feasible Alternative Designs Available is Irrelevant.


Plaintiff alleges that she was injured during a flag football game when her finger became entrapped in the D-ring closure of the opposing player’s flag belt. Plaintiff commenced this action in Supreme Court, Kings County, against the manufacturer and distributor of the flag belt, alleging, among other things, that the belt was defectively designed. After trial, a jury returned a verdict in favor of the plaintiff on the theory of strict products liability design defect. Defendants moved to set aside the verdict, arguing that the plaintiff failed to make out a prima facie showing that the flag belt was defectively designed. The trial court granted defendant’s motion; plaintiff appealed.

Plaintiff’s evidence regarding defective design consisted mainly of the testimony of her expert witness, who testified that the D-ring flag belt was not reasonably safe as designed. However, there was no substantial factual basis for this opinion. The only stated basis for plaintiff’s expert’s opinion was that the D-ring closure presented an opportunity for finger entrapment or entanglement and a potential to cause harm. He acknowledged that most of the tens of thousands of games he observed were played with quick release belts and only a limited number were played with D-ring belts. The expert never observed anyone’s finger become entrapped in the D-rings, and he provided no other evidence that, except for one case, it had ever happened before.

Plaintiff’s expert had no experience in the design or manufacture of flag belts. Similarly, he had conducted no testing of the D-ring belt. Without any such foundational facts, plaintiff’s expert’s opinion lacked probative value.

Further, plaintiff’s expert’s own evidence showed that in almost 20 years of regular play, mostly or always using D-ring belts, this type of injury had never occurred, except for this incident, which strongly suggests against a finding that the belt was substantially likely to cause injury. Without a showing that the product in question was unreasonably dangerous as designed, plaintiff’s showing that there were economically feasible alternative designs available is, essentially, irrelevant.

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