Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
New York
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CaliforNia
washiNgtoN, D.C.
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DelawareNew York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
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DelawareNew York
PeNNsYlvaNia
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Delaware
(continued on page 2)
December
2012
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Does New York Law Contain a Heeding
Presumption? It Depends Who You Ask
By Carl J. Schaerf and John R. Timmer
into a substantially altered meat chopper. At trial, the
plaintiff offered no evidence that a warning would
have altered his conduct, yet a jury returned a verdict
in his favor on his failure to warn claim. On appeal,
the manufacturer argued that because there was no
evidence as to whether the plaintiff would or would
not have operated the machine as he did if there had
been a warning, the plaintiff failed to demonstrate
that the lack of a warning was causally related to his
injury. In response to this argument, the Second Cir-
cuit stated:
Hobart’s argument about causation follows
logically from the notion that its duty to warn
in this case merely required Hobart to inform
Liriano that a guard was available and that
he should not use an unguarded grinder. The
contention is tightly reasoned, but it rests on
a false premise. It assumes that the burden
was on Liriano to introduce additional evi-
dence showing that the failure to warn was a
but-for cause of his injury, even after he had
shown that Hobart’s wrong greatly increased
the likelihood of the harm that occurred. But
Liriano does not bear that burden. When a
defendant’s negligent act is deemed wrong-
ful precisely because it has a strong propen-
sity to cause the type of injury that ensued,
that very causal tendency is evidence enough
to establish a prima facie case of cause-in-
fact. The burden then shifts to the defendant
to come forward with evidence that its negli-
gence was not such a but-for cause.
We know, as a general matter, that the kind
of negligence that the jury attributed to the
Few theories of liability are as elusive and difcult to
defend against as “failure to warn.” Given the hind-
sight borne of any accident, it is tempting to suggest,
and for a jury to want to believe, that a few simple
words of warning would have avoided a catastrophic
consequence. Moreover, failure to warn claims are
favored by plaintiffs because they do not require the
thorny analysis of the risk and utility of the product at
issue that design defect claims present. “One simple
sentence would have prevented this accident” is a
powerful pitch for plaintiff’s counsel, and it is one of
the hardest arguments for defense counsel to respond
to in front of a jury.
The question of burden of proof on a failure to warn
claim is therefore a critical one for defense counsel,
given the simplicity of the plaintiff’s argument. As
this Alert details, there is a split in how New York
state and federal courts, sitting in diversity, address
the question of whether the fact-nder shall presume
that the person injured by a product would have heed-
ed an adequate warning if given (the “heeding pre-
sumption”). While there are variations from court to
court even within the state and federal systems, it is
fair to summarize the state of the law as this: there is
no heeding presumption in New York state court, but
there is such a presumption in federal court. How this
can be possible in light of Erie RR Co. v. Tompkins,
304 U.S. 64 (1938) is less than clear, and perhaps cre-
ates an issue that will need to be squarely addressed
by the Second Circuit.
The split originates with the Second Circuit’s deci-
sion in Liriano v. Hobart Corp., 170 F.3d 264 (1999).
Liriano, a case originally brought in the U.S. District
Court for the Southern District of New York pursuant
to diversity jurisdiction, which involved a supermar-
ket worker who was injured when he inserted his hand
Product Li abi Lit y
ALERT
