In a design defect case, the plaintiff claims that the entire model line or a particular feature of an entire model line of the product is defective. In terms of everyday examples, the best illustrations of this concept are seen by consumer product recalls, for they are typically issued when there is a defect that is common to every one (or nearly every one) of the products that rolled off of the assembly line.

Under New York law, a manufacturer is liable for different types of product defects: it has a duty to design its product in such a way that it does not unreasonably risk harming anyone – whether the product’s user or any third parties – so long as the product is being used in a foreseeable manner. Consequently, there are circumstances where a manufacturer can be held liable even if the plaintiff did not use the product in its intended fashion.

Burden of Proof:
      New York’s courts have required plaintiffs to demonstrate that a product fails a seven-factor test in order to demonstrate that the product is defectively designed. These factors include considering the following: (a) the product’s utility to the public as a whole and to the individual user; (b) the likelihood that the product will cause injury; (c) the availability (and feasibility) of a safer alternative design; and, (d) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user.

Illustration: In a case that I handled a few years ago, the plaintiffs were severely burned when the floor lacquer that they were using to finish an apartment floor spontaneously ignited. The plaintiffs’ expert opined that the floor lacquer was defectively designed because safer, less flammable alternative lacquers were available, and were unlikely to have ignited under the same conditions. The expert further opined that these alternative formulations were available at the time of occurrence at a comparable cost.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer