A Manufacturer has a Continuing Duty To Warn Customers:

            The next time you throw out the product registration card for your snow thrower, table saw or child’s car seat – ask yourself this question: How will the manufacturer let me know if they discover a problem with this product?   The responsibility to warn the consumer does not end when a defectively design product leaves a manufacturer.  They are required to stay abreast of product design changes and let product users know if they learn of a danger – even after the sale.

            In Cover v. Cohen, 61 N.Y.2d 261, 274-275, 473 N.Y.S.2d 378 (1984), the Court of Appeals held that: A manufacturer or retailer may, however, incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale, through advancements in the state of the art, with which he is expected to stay abreast, or through being made aware of later accidents involving dangers in the product of which warnings should be given to users.  See also, Power v. Crown Equipment Corporation, 189 A.D.2d 310, 596 N.Y.S.2d 38, 39-40 (1^st Dept. 1993). 

            In Cover v. Cohen, the Court of Appeals reiterated the principal that evidence of post-manufacture design changes is admissible to establish that it was feasible for the defendant to have included the proposed design at the time the machine was originally manufactured and to demonstrate that the defendant failed to satisfy its continuing duty to warn.  61 N.Y.2d at 270, 473 N.Y.S.2d at 868.  In Liquori v. Hollymatic Corp., 230 A.D.2d 893, 894, 643 N.Y.S.2d 886, 887 (2d Dept. 1996), the Court held that evidence of post-manufacture design changes is admissible “.  .  . for the purposes of demonstrating the feasibility of alternative designs as of the time of manufacture, or in order to establish the manufacturer’s failure to satisfy its continuing duty to warn of a known risk.”  In Cramer v. Kuhns, 213 A.D.2d 131, 139, 630 N.Y.S.2d 128, 133 (3d Dept. 1995) the Court held that, “where a plaintiff is able to show that the manufacturer had knowledge of a defect prior to the accident, evidence of subsequent design changes is admissible” with respect to the continuing duty to warn.  See also, Haran v. Union Carbide Corporation, 68 N.Y.2d 710, 506 N.Y.S.2d 311 (1986).  

            As consumers, we can do two important things to help prevent future accidents and hold the manufacturer responsible for past accidents.  Report the specific details of the accident to the manufacturer and the US Consumer Products Safety Commission at www.cpsc.gov.

You Are Not in This Alone - Evidence of Other Accidents

             One of the most important battles in any product liability/machine accident case is the fight to obtain discovery from the manufacturer relating to prior accidents.  This information is vital at trial to show the jury that: (a) the defendant was aware of a problem with the design of the product; and (b) that the plaintiff was not the only person ever hurt by this product.   This is particularly important when the case involves a product that has been on the market for a long time because the defendant wants to say to the jury that you were the “only one” injured on one of the thousands of machines they produced over the last 50 years.  The clear implication is that the plaintiff suing a manufacturer because of a defective product got hurt because he/she was “stupid” rather than due to a defective design.  

            Evidence of other accidents occurring on admittedly similar model machines is admissible at trial to establish the defendant’s knowledge of the defect in the design and the dangerous nature of the machines.  Courts have consistently held that evidence of prior accidents is proper "to establish that the condition was dangerous and that defendant had notice of it before plaintiff's injury."  Sawyer v. Dreis & Krump Manufacturing Co., 67 N.Y.2d 328, 336, 502 N.Y.S.2d 696, 701, 493 N.Y.S.2d 920 (1986). 

            This concept is so effective at trial that manufacturers fight very hard to limit the information they disclose.  First, they attempt to limit the scope of discovery to the exact same model number involved in the plaintiff’s accident.  Second, they attempt to limit the timeframe for the discovery.  Finally, they try to argue that all of the other accidents are different from the plaintiff’s case.  To force disclosure of accidents involving “other models” it is important to show that even though they model name/number differs they are essentially the same design.  Often, a manufacturer makes different sizes of the same machine.  In addition, model names/numbers may change over the years with cosmetic changes (sometimes as trivial as changing the color); or with changes to the user manual.  This is particularly true in cases involving industrial machines that may be unchanged for decades. 

            The argument that the hordes of other accidents are different from the plaintiff’s case is often the most difficult because we are usually relying on the information provided by the manufacturer.  However, the plaintiff does not need to prove that each prior accident occurred “exactly” like his/hers – only that the prior accidents were substantially similar to the current case.  Therefore, if ten other people were hurt pushing meat into a grinding machine the jury should be allowed to hear it (regardless of the particulars of any one case).  This evidence is so important in the litigation of defective products and machines because it changes the theme from the plaintiff was the only “stupid” person to get hurt to “this was just an accident waiting to happen” because the defendant refused to protect people from this dangerous machine.