May 21, 2009
The End of Preemption Preambles?
Yesterday, President Obama issued a memorandum calling for a rollback of Bush Administration regulations that included claims, often in the form of a preamble to a set of agency regulations, that the federal agency's regulations preempted state law. Obama's memo says that federal agencies and departments should claim that state law is preempted only when there is a well-defined legal basis for such a claim. The memo also orders federal agencies to review regulations from the past 10 years to see if a preemption claim has been asserted improperly. See Alicia Mundy and Brett Kendall's story in the Wall Street Journal.
May 6, 2009
New York Court of Appeals and Delegation of Safety Choices to Employers
In Passante v. Agway Consumer Products, Inc., decided on May 5, the New York Court of Appeals considered a products liability case in which the plaintiff's employer, given a choice in product selection, selected a product without a safety device that allegedly would have avoided the injury to the plaintiff.
Passante was injured while using a mechanical dock leveler at Agway, doing business as G & P Fresh Pac warehouse. The dock leveler was manufactured by Rite-Hite Corporation and sold to G & P by Mullen Industrial Handling Corp. A dock leveler is a mechanical platform designed to provide a ramp between a loading dock and the bed of a truck or tractor trailer.
G & P was aware that it had the option of purchasing a safety option that would have avoided the risk that a truck would pull away from the loading platform, permitting the platform to drop and potentially cause injury. G & P chose to buy a dock leveler without that safety option, which would also have included a warning system notifying the operator when it was safe to enter a trailer or the driver when the platform was in position. The defendants moved for summary judgment. Finding questions of fact on the design defect and warning claims, Supreme Court denied the motion and the Appellate Division reversed, dismissing the plaintiffs' complaint in its entirety.
The essential question in the case concerned the application of the New York Court of Appeals decision in Scarangella v. Thomas Built Buses, 717 N.E.2d 679, 683 (N.Y. 1999), in which the court held that a product that fails to incorporate safety equipment is not defective, as a matter of law:
where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product. In such a case, the buyer, not the manufacturer, is in the superior position to make the risk-utility assessment, and a well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability.
Finding that the first factor was satisfied, the court of appeals focused on the second, concluding that "[d]efendants have not shown that the dock leveler would normally be used in circumstances in which the product is not unreasonably dangerous without a trailer restraint system such as Dok-Lok."
The court of appeals also held that there was a fact question concerning the adequacy of the posted warnings concerning the dangers associated with the use of the dock leveler. The plaintiff had experience with dock levelers, but not the specific leveler that he was using at Agway.
Judge Smith dissented on both points, concluding that
the more troubling of the two is the evisceration of Scarangella, which I fear will have real economic consequences. The predictability that was offered until today to manufacturers and distributors of equipment in this State is gone, and the result can only be an increase in cost-in the cost of liability insurance, and in the cost of safety features that buyers will no longer have the option to refuse. In much of this State, our economy struggles in the best of times, and these are not the best of times. Decisions like today's can only make things worse.