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“Foreseeability and the Erosion of the Material Alteration Defense”

On November 21, 2014 by Schnader

Schnader’s Saul Wilensky, Carl Schaerf and Matthew J. Kelly Jr., recently authored “Foreseeability and the Erosion of the Material Alteration Defense” for DRI’s November 2014 edition of For The Defense.

In New York, unlike many other states, the material alteration defense used to be a fairly absolute defense presenting no jury questions at all, based on the leading case Robinson v. Reed-Prentice, 49 N.Y.2d 471 (1980). Hoover v. Case New Holland N.A., Inc., decided by the New York State Court of Appeals (the highest court in New York State) in April 2014, changes that rule significantly. The decision puts New York more in conformity with other states and, in many circumstances, will allow a jury to determine whether a material alteration serves as a bar to a prod­uct liability claim.

The authors conclude that Hoover will likely spawn a lot more litiga­tion in New York State. To some degree it brings New York into conformity with the rest of the country, and in other respects it is even more plaintiff friendly than compa­rable law outside the jurisdiction. It estab­lishes a potential pathway around Robinson by allowing plaintiffs to claim that the safety itself was defective, whether because it required excessive maintenance or inter­fered with production. This pathway creates  a new route to the employ­er’s coverage, and it will be exploited. For manufacturers sued in New York, and else­where, there are new challenges, and a cre­ative approach to the defense is required. There are many open questions to answer.

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