New York state’s High Court has expanded the optional safety device exception to strict products liability to apply to equipment rental.
In 1999, the New York Court of Appeals laid out an exception to the general rule of strict products liability for design defect claims. The exception applied to manufacturers who offer a product with an optional safety device that a purchaser chooses not to obtain. The theory behind this exception is that a purchaser cannot claim that a product was defectively designed when a safety device existed for such product and the purchaser simply chose to refrain from obtaining and/or using such device.
Scarangella v. Thomas Built Buses, 93 N.Y.2d 655, 695 (NY 1999) outlines a three-pronged test for determining that a manufacturer should not be strictly liable where an optional safety device was not obtained:
(1) a buyer must be “thoroughly knowledgeable” about a product and its intended use, and must be “actually aware” that the safety feature is available;
(2) normal circumstances of use of the product without the optional safety device are not “unreasonably dangerous”;
(3) the buyer is in a position to conduct a cost-benefit analysis of whether to obtain the optional safety feature under the “specifically contemplated circumstances of the buyer’s use of the product.” Id.
Safety device exception in the rental market
The safety device exception is fairly straightforward in its application when the purchaser of the product is also the end user because, in such a case, the purchaser has made an educated decision not to use the safety device. More nuanced, however, is the situation the New York Court of Appeals recently confronted, in which an equipment rental agency purchased the product without the optional safety device, and then leased it to the end user, who was ultimately killed while operating the equipment.
In Fasolas v. Bobcat of New York, Inc., et al, 2019 Slip Op. 03657 (NY 2019), the Court of Appeals held that a construction equipment manufacturer was not categorically barred from asserting the safety device exception simply because the end user obtained and was killed on the steer loader in question via the rental market, rather than by a purchase transaction. In this case, the decedent rented a steer loader (a ride-on machine suitable for light construction functions) that—per the equipment renter’s decision—did not contain an optional front door, and thus had only an open front operator cab. In general, the steer loader could be customized with over 150 attachments based on its intended function, but undisputed evidence in this case showed that the end user’s intended use was to dig or move soil with a bucket attachment.
While the decedent was operating the open-cab steer loader, a small tree entered the front cab and crushed him. The decedent’s estate commenced a wrongful death action against the equipment manufacturer, and asserted claims of design defect under a theory that the front door should have been a standard—and not an optional—safety device.
When the equipment manufacturer requested that the jury be instructed on the safety device exception, the estate argued that no such instruction should be given since the end user was not the individual that made the decision as to whether to obtain the optional front door safety device on this particular unit. The trial court also instructed the jury to consider whether the product was reasonably safe for use in the broad context of “the rental market,” which arguably asked jurors to take into account safety in every possible rental application, rather than safety in the context of the steer loader’s intended use.
Although the trial court declined to instruct the jury as to the safety device exception, the Court of Appeals reversed and remanded for a new trial, holding that the manufacturer should not be categorically barred from asserting the safety device exception. In support of its decision, the Court of Appeals reasoned that the safety device exception has no requirement that the purchaser be at “risk of personal harm”; rather, the practical realities of the stream of commerce dictate that products and equipment are often purchased by non-users for operation by others. Fasolas, 2019 Slip. Op. at *5. So long as the purchaser is in a position to make an informed decision as to the end user’s safety in the context of that operator’s intended use, the safety device exception should remain available.
The Court of Appeals further reasoned that the equipment rental agency—as an intermediary—had specialized knowledge of its clientele (the end users of the equipment) and the intended uses of the equipment and, further, the rental agency often rented to sophisticated and educated users of the equipment. Thus, the renter in this case was in a position to “appropriately mitigate risk by carefully controlling to whom it rent[ed] its products and for what use[s].” Fasolas, 2019 Slip. Op. at *5.
Finally, the Court held that it was reversible error to charge the jury to consider whether the steer loader without the front door was safe for use “in the rental market,” rather than safe for “its intended and reasonably foreseeable uses.” Id. at *7. Significantly, the Court acknowledged that the practical implications of holding a manufacturer to such a high duty would force equipment lessors to make every safety device available for every attachment accompanying every loader entering the rental market; which, in turn, would make rental of such products cost-prohibitive and inaccessible to occasional users.
The Fasolas decision thus reaffirms and expands the defenses available to product manufacturers by allowing them to avail themselves of the safety device exception, even where the manufacturer sells to an intermediary who then leases the product to the end user.