In New York, if a person is injured because of a defective product he/she may seek recovery against the manufacturer, wholesalers, distributors, retailers, makers of the components parts, lessors and processor of the material, under four theory of liability. To recover damage jury must find that the product was defective and the defect was a substantial factor in causing victim or injured person’s injury.

A product may be defective if a product flaw in the manufacturing process, inadequate instruction or warning or a defect in the design. A product is defective if it is not reasonably safe that the product is likely to be very harmful to persons or property, that a reasonable person who had actual knowledge of the potential for producing injury would conclude that it should not have been marketed in that condition.

The injured person may recover against the manufacturer, wholesalers, distributors, retailers, makers of the components parts, lessors and processor of the material under the strict product liability theory.

Strict Product Liability

Manufacturers, wholesalers, distributors, retailers, makers of the components parts, lessors and processor of the material of a defective product, is liable to any injured or damaged person if the defect of the product was a substantial factor in bringing about the injury or damages, as well as, additional four three things are satisfied.

They are:

  • At the time of occurrence, the product was used for the purpose and in the manner normally intended,
  • Injured person, himself/ herself would not have, by the exercise of reasonable care, discovered the defect and perceived its danger,
  • The injured person or victim, be the exercise of reasonable care would not otherwise have averted his injury or damages.

These kinds of defects can be in the manufacturing process or improper design of the product, or manufacturer failed to warnings regarding the use of the product.

The defectively designed product is in a condition not reasonably contemplated by the consumer and is unreasonably dangerous or it was not reasonably safe for its use, furthermore, the defective product’s utility does not outweigh the danger inherent in its introduction into the stream of commerce. Bhurtel Law firm located in Queens NYC is there to help consumers fight against of these defective products manufacturers that could have potentially caused the injury. Contact us today.

The jury will decide whether a product was not reasonably safe or not?

If the manufacturer failed to show that the product’s utility outweighs its risks when the product was designed so that the risks are reduced to the greatest extent possible while retaining the product’s inherent usefulness at an acceptable cost. Another word jury may decide based on balancing test which is the product’s risk is against the product’s utility and cost. To evaluate defective product jury may use balancing test of inherent risk against product’s utility and cost.

The jury may consider various factor for the product liability case such as:

  • (1) the utility of the product to the public as a whole and to the individual user,
  • (2) the nature of the product that is a likelihood that it will cause injury,
  • (3) the availability of safer design,
  • (4) the potential designing and manufacturing the product so that it is safer but remains functional and reasonably priced,
  • (5) the plaintiff’s ability to avoid injury by careful use of the product,
  • (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the victim or injured person, and
  • (7) the manufacturer’s ability to spread the cost related to improving the safety of the design.

Source: Voss v Black & Decker Mfg. Co., 59 NY2d 102 [1983].

Negligent Liability

An Injured person may recover against a manufacturer under the negligence theory.

Manufacturer, wholesaler, distributors, retailers, makers of the components parts, lessors and processor of the material negligently liable if manufacturer failed to act reasonably in designing, testing, manufacturing, selling, inspecting or marketing of the product which caused injury to the victim.

The manufacturer has a duty to warn of the latent danger arising from a known and reasonably foreseeable use of its product which manufacturer knew or should have known. The manufacturer also warns of dangers arising from the product’s intended use or a reasonably foreseeable unintended use. The manufacturer has legal duty to give warnings regarding danger or hazards arising from foreseeable uses of the product which manufacturer learns after the sale of the product. Manufacturer owes duty warn to original or ultimate purchasers of the product, to the employee of those purchasers, and to third persons exposed to a foreseeable and unforeseeable risk of harm.

The law provides that there can be implied contract or express contract between the manufacturer and injured person, at that condition victim or injured person may recover against the manufacturer under express or implied contract.

1. Express Warranties by the manufacturer wholesalers, distributors, retailers, makers of the components parts, lessors and processor of the material

When Manufacturer or seller makes an affirmation of facts or a promise to buyer related to goods, that affirmation or facts or promise become part of the bargaining process between seller and buyer which creates Express warranties. In another word, if the seller tells buyer nature and quality or provides a description of the goods which creates a warranty. Likewise, if the seller gives a sample and that sample creates a warranty of the remaining of products. Source: NY CLS UCC § 2-313.

When a manufacturer which in advertising & labeling its product represents the quality of the goods to the public in such a way as to induce a purchase or use such good, thereby makes an express warranty and that, it will conform to the representation. If the product does not conform to the representation, the warranty is breached. Source: PJI 2:240.

A. Implied warranty of merchantable and fit for particular purpose

Manufacturer or Seller is a merchant of certain goods at that condition seller impliedly warrants that such goods are merchantable for their sale unless excluded or modified such warranty. Implied warranties may arise from course of dealing or usage of trade.

What is merchantable of goods?
To be a merchantable good must be at least:

a. Pass without objection in the trade under the contract description, and

b. In the case of fungible goods, are of fair average quality within the description, and

c. are fit for the ordinary purposes for which such goods are used, and

d. run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

e. are adequately contained, packaged, and labeled as the agreement may require; and

f. confirm to the promises are affirmations of fact made on the container or label if any.

Source: NY CLS UCC § 2-314

When a buyer buys a good for particular purpose or seller has reason to know any particular purpose for which the goods are required and the buyer is relying on the seller’s skill or judgment to select suitable goods, there is implied warranty of that good for fit for such purpose unless such warranty is excluded by seller.
Source: NY CLS UCC § 2-315

The law implies a warranty by a manufacturer, wholesaler, retailer that places a product on the market that it is reasonably fit for the ordinary purpose for which such product is used. If the product is not reasonably fit to be used for its ordinary purposes the warranty is breached. Source: PJI 2:142.


The Victim may claim following damages:

Past medical care expenses
Future medical care expenses
Loss of income
Pain and suffering
Mental anguish or anxiety
If necessary life care expenses
Other damages
Please take notice that this is not a legal advice. This is an advertisement. If you need legal advice, please contact Bhurtel Law Firm.