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Summary Judgment Practice Refined by a New Decision

June 13, 2011 in  News

New York Law Journal

The New York Court of Appeals issued its decision in Yun Tung Chow v. Reckitt & Colman Inc.1 on May 10. It was a products liability case. Plaintiff, a restaurant worker who read no English suffered burns and lost sight in his left eye when a solution he created of 100 percent sodium hydroxide crystals and water splashed back from a clogged floor drain in the kitchen as he bent forward at the waist. The product, commonly known as lye, was sold under the brand name Lewis Red Devil Lye, which the Court abbreviated for convenience as RDL. The product is sold in the form of dry crystals and is packaged and marketed as a product that clears clogged drains.

The RDL came in a bottle which had printed instructions and warnings. The user is told to “keep face away from can and drain at all times.” The label warned that splash back and serious injury may occur if RDL is not used as directed. In the label’s section called “Directions for Use,” it said protective eyewear and rubber gloves are to be used when handling the products. The user is advised that one should “NEVER POUR LYE DIRECTLY FROM CONTAINER INTO DRAIN.” Instead, a plastic spoon is to be used to dispense the product. The user is advised to keep RDL away from contact with “aluminum utensils.” One tablespoon of the dry crystals is to be spooned into the clogged drain; then the user is to wait 30 minutes. After that interval, the user may check to see if the drain is clear by “adding several cups of COLD water.” If the drain is not clear the label advises to try a repeat application only once. If the drain clog continues, a plumber should be consulted.

Unable to read English, plaintiff testified (through an interpreter) that he never read the label’s instructions and warnings. He made no attempt to obtain assistance in reading the label. He used the RDL many times in the past, having learned how to handle the lye by following the examples of others he observed. Normally, he would take one spoonful of RDL, add one cup of water, and then pour that solution down the clogged drain. Then, “right after that,” he would flush the drain with water and the drain would be clear.

On the fateful day, however, upon noticing the clogged kitchen floor drain, plaintiff found there was little remaining in the RDL bottle. So he put all that was left, some three spoonfuls, into an aluminum can and poured in roughly three cups of cold water. There was no reaction in the container. He walked the four steps to the drain and, without using eye protection, bent at the waist, and poured the solution into the drain. Immediately, there was a splash back with the sad consequences.

Plaintiff sued on theories of defective design and inadequate warnings. Defendants moved for summary judgment. The Supreme Court dismissed the inadequate warnings claim since plaintiff made no attempt to read or obtain assistance in reading the label. Thus, any inadequacies in the product’s labeling were not a substantial factor in bringing about the injury. The Appellate Division, First Department, agreed that the warnings claim was not viable, a ruling not challenged in the Court of Appeals.

Plaintiff’s design claim focused on the lye’s alleged propensity to cause splash back. Plaintiff offered the affidavit of a chemist and chemical engineer who opined that RDL was unreasonably dangerous. Further, he said, a safer alternative could be created by diluting the sodium hydroxide to a 3 percent to 5 percent solution. How he arrived at these percentages was unexplained. He conceded it would take “somewhat longer to do the job.” The expert also did not support his proposition that bottling lye in a water-based solution would not change its chemical composition.

A majority of the Appellate Division panel deemed the affidavit to fall short of explaining how the product could feasibly be made safer. Two justices dissented concluding that plaintiff raised an issue of fact whether RDL was defectively designed, that is, whether the product’s utility outweighed its inherent danger.

Showing Required

In an opinion by Chief Judge Jonathan Lippman, the Court of Appeals concluded that the summary judgment on the design issue should not have been granted. The root problem was not in the discernment or application of products liability law but, rather, with the showing required on the summary judgment motion. Thus, declared the Court: “We conclude, in accordance with settled summary judgment and products liability principles, that a defendant moving for summary judgment in a defective design case must do more than state, in categorical language in an attorney’s affirmation, that its product is inherently dangerous and that its dangers are well known. Rather, to be entitled to summary judgment in such a case, a defendant must demonstrate that its product is reasonably safe for its intended use; that is, the utility of the product outweighs its inherent danger. Defendants failed to make such a showing here.”

Clearly, plaintiff’s handling of the RDL was not in accordance with the label’s instructions and warnings. Clearly, too, lye is dangerous and many would know that. But, as with any motion for summary judgment, “defendants must first show an entitlement to judgment as a matter of law.” Thus, “a mere statement in an attorney’s affirmation” in support of a motion for summary judgment that lye is lye, that everyone knows it is dangerous, and that any variation in RDL’s composition would result in a different product because such altered product “would not be 100% sodium hydroxide,” is not enough. Such an attorney’s statement “does not result in a shift of the burden to plaintiff to then explain how RDL could be made safer.”

At this motion stage, defendants cannot simply rely on the fact that the product is what they say it is and that the danger is well known. “[T]hat only begs the question at the heart of the merits of the design claim.” That question is: “knowing how dangerous lye is, was it reasonable for defendants to place it into the stream of commerce as a drain cleaning product for use by a layperson?” The Court concluded that defendants offered no answer to this question and, thus, did not demonstrate entitlement to judgment as a matter of law.

But, what about plaintiff’s mishandling of the product? At the Appellate Division, the majority justices concluded that, “Defendants have met their burden by making a prima facie showing that Chow’s failure to heed the product warning was the sole proximate cause of the accident.”2

The Court of Appeals, however, disagreed but predominantly because the state of the record offered by defendants in support of the summary judgment motion was not enough. Summary judgment in a strict products liability case can be granted on the basis of the plaintiff’s actions, when they constitute “the sole proximate cause” of his or her injuries. However, plaintiff’s mishandling of the RDL product here, standing alone, was not sufficient because the record presented by defendant on the motion was inadequate. “[A] factfinder could conclude on the basis of the record before us that the product was so inherently dangerous that it should never have found its way into the stream of commerce as packaged and marketed.”

In effect, suggests the Court, as the summary judgment motion was drawn and presented, defendant merely posited that lye is lye and its danger is well known. The focus of the showing was on plaintiff’s misuse of the product without his heeding of the warnings. At this point, suggests the Court, the “reasonably safe” character of the RDL’s design had not yet been shown. Thus, there was a gap in the requisite showing on a summary judgment motion that RDL’s design utility outweighed its risks, i.e., that it was reasonably safe, i.e., that it was not defective. That kind of a showing—not by way of a conclusory attorney’s affirmation—when properly made and offered would place a burden on plaintiff to come forward with competent proof. Plaintiff would have to show that the product’s risks outweighed its utilitarian features and that the product, therefore, was not reasonably safe.

In the summary judgment stage, the absence of a showing that the RDL product’s design was “reasonably safe,” that its utility outweighed its risks, left the possibility that a factfinder—on that record—could find the lye “was so inherently dangerous that it should never have found its way into the stream of commerce as packaged and marketed.” That doesn’t mean the RDL product is, in fact, that dangerous. It simply means that the affirmative showing needed for summary judgment—that RDL was reasonably safe—was not made.

The Court confirms this in the opinion’s last substantive paragraph: “Defendants here may ultimately prevail on the merits by showing that RDL’s utility outweighs its inherent danger and by demonstrating through expert testimony that it was not feasible to design a safer, similarly effective and reasonably priced alternative product.” On this motion, however, merely stating in an attorney’s affirmation that RDL is knowingly dangerous and that warnings were not followed “was insufficient” for a grant of summary judgment as a matter of law. “Defendants were required to demonstrate that RDL was reasonably safe for its intended use, but they offered no such evidence.”

Judge Robert S. Smith, in a separate concurring opinion, joined in by Judge Susan Phillips Read, observes that “our decision is the result not of the merit of plaintiff’s case, but of a feature of New York procedural law.” Plaintiff will have the burden of proof at trial of the product’s design defectiveness, i.e., whether lye is reasonably safe for its intended use. Here plaintiffs tried to meet their burden in an expert’s opposing affidavit “but fell short.” Had plaintiff developed this record at a trial, a directed verdict for defendants would be required. One might think, therefore, that the record would entitle defendants to summary judgment.

One who thought that “would be wrong,” however, “because the initial burden to make an evidentiary showing on summary judgment rests on the moving party.” Here the inadequacy of plaintiff’s expert’s affidavit is “irrelevant” because defendants “produced no evidence of the absence of a safer but functionally equivalent alternative to lye.” Defendants relied simply on a statement in an attorney’s affirmation that “the product at issue…cannot be designed differently without making it into an entirely different product.” A 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 that burden was not met.”


Alarmists could read atomized sentences in the Court’s opinion as portents of a changed or changing products liability law for New York. Such a reading would appear to be off base and unwarranted. Rather, the Court has used the extremity of liability boundaries along with picturesque language—”the product was so inherently dangerous it should never have found its way into the stream of commerce as packaged and marketed”—in order to punctuate the requisite showing on a summary judgment motion. Such hyperbole emphatically instructs on the evidentiary gap, on what was not shown, on the proofs that should have attended the summary judgment motion.

New York products liability law on design remains what it is, a “not reasonably safe” standard. Products that are dangerous to use in society are not foreclosed so long as they are “reasonably safe.” What that means will depend on the product, its ambit of use and misuse, the steps needed to be taken to make its use reasonably safe, the precise factual circumstances in the case and the interface of plaintiff’s conduct. That is the way it was. That is the way it is. The new Yun Tung Chow decision does not change this. But, if one wants to structure a viable summary judgment motion or defend against it, the new decision gives cogent lessons.

Michael Hoenig is a member of Herzfeld & Rubin.


  1.  2011 NY Slip Op 3888, 2011 N.Y. LEXIS 754 (N.Y. Ct. App. May 10, 2011).
  2.  Yun Tung Chow, 69 A.D.3d 413, 414 (1st Dept. 2010).