stating, on an issue other than accrual, that “[t]o hold ... that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product”
How later courts described this case
- stating, on an issue other than accrual, that “[t]o hold ... that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product”
- affirming reversal of jury verdict, initially rendered in plaintiffs’ favor, in design defect case because plaintiffs presented no evidence that defendants *70 could feasibly have designed safer version of cigarettes
- comparing functional difference between cigarette and plaintiffs’ proposed alternative to case in which plaintiffs safer design for “quick drying lacquer sealer” made from water base was functionally different from “highly flammable solvent base” because “water-based products take hours longer to dry”
- “While this is a negligence, not a strict liability, case, similar requirements apply—specifically, plaintiffs here had to prove that “it was feasible to design the product in a safer manner.” (quotation marks omitted)
Written by the judges who cited it.
The opinion
Pigott, J.
(dissenting). I respectfully dissent. Plaintiffs met their burden of establishing that defendants were able to design a safer cigarette that maintained the functionality of a regular cigarette (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109 [1983]). The majority concludes, however, that plaintiffs were required “to prove that smokers find light cigarettes as satisfying as regular cigarettes,” and were further obligated to prove that cigarettes serve some function other than to provide plea *552 sure (majority op at 550). In my view, this language improperly shifts the burden of proving consumer acceptability to plaintiffs.
At trial, defendants moved “to offer evidence tending to prove that the ‘safer alternative design’ suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e., not commercially viable)” ( 10 Misc 3d 680, 696-697 [2005]). The trial court denied that motion, concluding that evidence of commercial viability of the lighter cigarette was irrelevant to its feasibility or functionality (id. at 699). That was error and, therefore, I would remit the matter to Supreme Court for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette.
Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Jones concur with Judge Smith; Judge Pigott dissents in a separate opinion.
Order affirmed, with costs.